United States v. Francisco Robles ( 2021 )


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  •                         NONPRECEDENTIAL DISPOSITION
    To be cited only in accordance with Fed. R. App. P. 32.1
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Submitted January 21, 2021
    Decided January 22, 2021
    Before
    FRANK H. EASTERBROOK, Circuit Judge
    MICHAEL S. KANNE, Circuit Judge
    DAVID F. HAMILTON, Circuit Judge
    No. 20-1141
    UNITED STATES OF AMERICA,                     Appeal from the United States District
    Plaintiff-Appellee,                      Court for the Northern District of Illinois,
    Eastern Division.
    v.
    No. 1:18-CR-00565-1
    FRANCISCO ROBLES,
    Defendant-Appellant,                      John J. Tharp, Jr.,
    Judge.
    ORDER
    Francisco Robles and an accomplice, Daniel Garcia, sold undercover federal
    agents three kilograms of heroin in a shopping mall parking lot. Robles pleaded guilty
    to conspiracy to distribute and distribution of one or more kilograms of heroin. 
    21 U.S.C. §§ 846
     & 841(a)(1) and (2). The district court imposed the mandatory minimum
    sentence of 120 months in prison and ten years of supervised release. Robles appealed,
    but his appointed counsel asserts that the appeal is frivolous and moves to withdraw.
    See Anders v. California, 
    386 U.S. 738
    , 744 (1967). We agree and grant the motion.
    No. 20-1141                                                                         Page 2
    Counsel’s brief explains the nature of the case and potential issues an appeal of
    this kind would be expected to involve. The analysis appears thorough, and Robles has
    not responded to the motion, see CIR. R. 51(b), so we limit our review to the issues
    counsel raises. See United States v. Bey, 
    748 F.3d 774
    , 776 (7th Cir. 2014). After
    consultation with counsel about the risks and benefits of challenging his guilty plea
    Robles reported that he wishes only to challenge the length of his sentence.
    See United States v. Konczak, 
    683 F.3d 348
    , 349 (7th Cir. 2012). Therefore, counsel
    properly omits discussion of whether the plea was knowing and voluntary.
    United States v. Knox, 
    287 F.3d 667
    , 671 (7th Cir. 2002).
    Counsel correctly concludes that Robles cannot raise any nonfrivolous argument
    that there was a legal or procedural error in the calculation of his sentence. First, the
    120-month prison sentence comports with the law: it is the mandatory minimum based
    solely on the quantity of heroin he admitted selling (3 kilograms) and far short of the
    statutory maximum sentence of life imprisonment. 
    21 U.S.C. § 841
    (b)(1)(A)(i) and (viii).
    Second, the court correctly calculated the range under the Sentencing Guidelines. Under
    U.S.S.G. § 2D1.1(a)(5), Robles began with a base offense level of 32; this was decreased
    by three levels for his acceptance of responsibility but increased by two because the
    court found that Robles planned and organized the drug sale and managed Garcia.
    See U.S.S.G. § 3B1.1(c). With a criminal history category of I, this resulted in a range of
    108 to 135 months, which became 120 to 135 months in light of the 10-year (120-month)
    statutory minimum. See U.S.S.G. § 5G1.1(b). There is no plausible challenge to this
    computation.
    Because of Robles’s role in the offense, the district court also ruled that, despite
    his otherwise clean record, he was ineligible for a below-minimum sentence under the
    safety valve, which does not apply if the defendant was “an organizer, leader, manager,
    or supervisor of others in the offense, as determined under the sentencing guidelines.”
    See § 5C1.2(a)(4); 
    21 U.S.C. § 841
    (b)(1)(A)(viii). As counsel explains, Robles would be
    unable to make a nonfrivolous argument that the court’s findings about his role in the
    offense were clearly erroneous. See United States v. Fincher, 
    929 F.3d 501
    , 505 (7th Cir.
    2019) (affirming sentence when judicial factfinding resulting in safety valve
    ineligibility). Although the district court believed that it was a close case, Robles
    admitted facts sufficient to permit the court to come to a “commonsense judgment” that
    he planned or organized the crime. United States v. Colon, 
    919 F.3d 510
    , 517 (7th Cir.
    2019) (citation omitted).
    No. 20-1141                                                                        Page 3
    Specifically, Robles conceded that, after the undercover agent initiated contact,
    he called and sent text messages to the agent several times to negotiate the price and
    amount of heroin to be sold, decided where and when the sale would take place,
    instructed Garcia how to package and deliver the heroin, and decided how much to pay
    him. See U.S.S.G. § 3B1.1(c), App. Note 4 (directing courts to consider the defendant’s
    decision-making authority, recruitment and control over accomplices, and share in the
    fruits of the crime). In the sentencing hearing, the district judge carefully analyzed our
    treatment of the “organizer” issue in United States v. Collins, 
    877 F.3d 362
    , 366–68
    (7th Cir. 2017). The court focused on the facts of the one large drug transaction at issue
    here and explained the ways in which Robles first recruited and then directed Garcia
    and paid him a trifling amount for his work as a courier in the deal. Our review of the
    district court’s findings would be deferential, making any challenge to the enhancement
    frivolous in this case.
    Counsel next concludes, and we agree, that the sentence imposed was also
    substantively reasonable. Though the court determined that Robles was ineligible for a
    below-minimum sentence through the safety valve, it discussed his mitigation
    arguments, including substance abuse, lack of a criminal record, and strong family
    support, when it imposed no more than the minimum. See 
    18 U.S.C. § 3553
    (a); see also
    United States v. Jackson, 
    940 F.3d 347
    , 354 (7th Cir. 2019) (holding that a sentence that
    equal to the mandatory minimum and within the Guidelines range was reasonable).
    Moreover, as a mandatory minimum, Robles’s sentence “could not be lower if he were
    resentenced.” United States v. Melvin, 
    948 F.3d 848
    , 854 (7th Cir. 2020).
    Finally, in his written submissions before sentencing, Robles expressly waived all
    challenges to the two five-year terms of supervised release and the conditions. See 
    21 U.S.C. § 841
    (b)(1)(A)(viii). Therefore, it would be frivolous to challenge this component
    of his sentence. See United States v. Wheeler, 
    857 F.3d 742
    , 744 (7th Cir. 2017).
    We GRANT the motion to withdraw and DISMISS the appeal.
    

Document Info

Docket Number: 20-1141

Judges: Per Curiam

Filed Date: 1/22/2021

Precedential Status: Non-Precedential

Modified Date: 1/22/2021