United States v. Cervantes-Lopez , 165 F. App'x 485 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 1, 2006
Decided February 3, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 05-1707
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of
Wisconsin
v. No. 04-CR-222
EFREN CERVANTES-LOPEZ, Rudolph T. Randa,
Defendant-Appellant. Chief Judge.
ORDER
Police in Milwaukee, Wisconsin, arrested Efren Cervantes-Lopez after he
drove away from a residence that was under surveillance for suspected drug
activity. Cervantes-Lopez, a Mexican citizen, was turned over to federal authorities
and pleaded guilty to being in the United States without permission after removal.
See 8 U.S.C. § 1326(a). He was sentenced to a 70-month term of imprisonment, the
minimum under the advisory guidelines. Cervantes-Lopez’s counsel now seeks to
withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), because he cannot
discern a nonfrivolous basis for appeal. We notified Cervantes-Lopez that he could
respond to counsel’s submission, see Cir. R. 51(b), but he has not done so. We thus
review only the potential issue identified in counsel’s facially adequate brief, see
No. 05-1707 Page 2
United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per curiam), and agree
with counsel that it is frivolous.
Counsel first informs us that Cervantes-Lopez does not wish to have his
guilty plea set aside. Accordingly, counsel appropriately avoids any discussion of
the plea colloquy or the voluntariness of Cervantes-Lopez’s plea. See United States
v. Knox, 287 F.3d 667, 671 (7th Cir. 2002).
What counsel is left with is the possibility of challenging Cervantes-Lopez’s
70-month term of imprisonment. That term is below the 20-year statutory
maximum applicable to Cervantes-Lopez, who twice has been removed after serving
a four-year Wisconsin sentence for possession of cocaine with intent to deliver. See
8 U.S.C. § 1326(b)(2). The prison term is also based on a correct calculation of the
sentencing guidelines, and thus is presumptively reasonable. See United States v.
Paulus, 419 F.3d 693, 700 (7th Cir. 2005); United States v. Mykytiuk, 415 F.3d 606,
608 (7th Cir. 2005). Counsel explains that nothing he found in the record before the
district court rebutted the presumption, and so he concludes that it would be
frivolous to argue that the term imposed is unreasonable. We agree and note that
Cervantes-Lopez’s only argument for a sentence below the guideline minimum
based on the factors listed in 18 U.S.C. § 3553(a) was that he has strong family ties
in the United States that motivated him to return. The sentencing court was
skeptical about the strength of those families ties, but it did consider the argument
before rejecting it. And that consideration is more than sufficient for us to conclude
that challenging the reasonableness of the term imposed would be frivolous. See
United States v. Welch, 429 F.3d 702, 705 (7th Cir. 2005) (noting that district court
is not obligated to provide detailed explanation of its consideration of § 3553(a)
factors); United States v. Dean, 414 F.3d 725, 729-30 (7th Cir. 2005).
Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is
DISMISSED.