United States v. Manuel Contreras-Del , 488 F. App'x 156 ( 2012 )

NONPRECEDENTIAL DISPOSITION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 December 20, 2012
Decided December 20, 2012
Before
WILLIAM J. BAUER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
No. 11-3856
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 11 cr 238-1
MANUEL SALVADOR
CONTRERAS-DEL TORO, William J. Hibbler,
Defendant-Appellant. Judge.
ORDER
Manuel Contreras-Del Toro was removed from the United States in 2001 after
serving five years in federal prison for conspiracy to possess cocaine and marijuana with
intent to distribute. He was still on supervised release for that crime when he reentered the
country unlawfully a year later. Authorities arrested him during a traffic stop in 2011 after
he produced a phony driver’s license with an alias. Contreras pleaded guilty to
unauthorized presence in the United States after removal, see 18 U.S.C. § 1326(a), and was
sentenced to 60 months in prison, well below the guidelines range of 70 to 87 months.
Contreras filed a notice of appeal, but his newly appointed counsel has concluded
that the appeal is frivolous and seeks to withdraw. See Anders v. California, 386 U.S. 738No. 11-3856 Page 2
(1967). Contreras has not responded to his lawyer’s submission. See CIR. R. 51(b). We
confine our review to the potential issues discussed in counsel’s facially adequate brief.
See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2004). Contreras has informed
counsel that he does not seek to have his guilty plea set aside, so counsel properly forgoes
discussing the adequacy of the plea colloquy or the voluntariness of the plea. See United
States v. Knox, 287 F.3d 667, 672 (7th Cir. 2002).
Counsel first considers whether Contreras could argue that the district court
miscalculated his guidelines range. In the district court, Contreras objected to the probation
officer’s proposed guidelines calculations on two grounds; we agree with counsel that an
appellate challenge on either ground would be frivolous. First, Contreras argued that his
federal drug conviction and an Illinois conviction for possession of a firearm by a felon
should not count separately in assessing criminal-history points since his prison terms for
those offenses ran concurrently. But concurrent sentences do not affect how convictions are
scored, and prior convictions always count separately if, as here, the crimes were separated
by an intervening arrest. See U.S.S.G. § 4A1.2(a)(2); United States v. Statham, 581 F.3d 548,
555 (7th Cir. 2009); United States v. Graves, 418 F.3d 739, 745 (7th Cir. 2005). Second,
Contreras maintained that criminal-history points should not be added for committing the
§ 1326(a) offense while on supervised release because, he argued, his removal deprived the
district court of “jurisdiction to impose” supervised release. This contention makes no
sense if taken literally, since the term of supervised release was imposed when Contreras
was sentenced in federal court in 1997, not when he was removed from the United States in
2001. He must have been arguing instead that removal effectively terminates supervised
release, but that understanding is not correct. See United States v. Garcia-Garcia, 633 F.3d 608,
612 (7th Cir. 2011); United States v. Akinyemi, 108 F.3d 777, 779–80 (7th Cir. 1997).
Counsel also considers whether Contreras could challenge the reasonableness of his
prison sentence. The lawyer has not identified any reason, however, to set aside the
presumption of reasonableness applicable to sentences below the guidelines range. See
United States v. Curtis, 645 F.3d 937, 943 (7th Cir. 2011); United States v. Liddell, 543 F.3d 877,
885 (7th Cir. 2008). Before imposing sentence the district court looked to 18 U.S.C. § 3553(a)
and mentioned the likely effect of incarceration on Contreras’s children and his assertion
that he mostly had obeyed the law since returning to the United States. Yet the court
concluded that 60 months’ imprisonment was necessary to deter Contreras from a further
violation of § 1326(a). Thus any challenge to the reasonableness of Contreras’ sentence
would be frivolous.
The motion to withdraw is GRANTED, and the appeal is DISMISSED.