United States v. Martinez, Ramiro G. , 154 F. App'x 514 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 14, 2005
Decided November 15, 2005
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-1862
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin
v.
No. 04-CR-184-S-01
RAMIRO G. MARTINEZ,
Defendant-Appellant. John C. Shabaz,
Judge.
ORDER
Ramiro Garcia Martinez pleaded guilty to one count of possession with
intent to distribute cocaine, 21 U.S.C. § 841(a)(1), and was sentenced to 82 months’
imprisonment and five years’ supervised release. Appointed counsel filed a notice
of appeal but now moves to withdraw because he cannot discern a nonfrivolous
basis for appeal. See Anders v. California, 386 U.S. 738 (1967). We informed
Martinez of his right to respond to counsel’s motion, see Cir. R. 51(b), but he has not
replied. Counsel’s brief is facially adequate, so we confine our review to the
potential issues he identifies. See United States v. Tabb, 125 F.3d 583, 584 (7th
Cir. 1997).
No. 05-1862 Page 2
Counsel focuses on Martinez’s sentence, first identifying two potential issues
relating to the calculation of the advisory guideline range. He considers arguing
that the drug quantity—at least 710.7 grams of cocaine—was calculated incorrectly.
Martinez stipulated in his plea agreement that the government could prove he
possessed between 400 and 500 grams of cocaine, but the probation officer who
prepared the presentence investigation report calculated the larger quantity based
on statements from an informant and four controlled buys that had occurred during
the course of the investigation. Martinez objected to the drug quantity in the PSR
but later withdrew the objection; thus, he waived his right to challenge the
calculation, see United States v. Staples, 202 F.3d 992, 995 (7th Cir. 2000). We
agree that it would be frivolous to challenge the drug quantity on appeal.
Counsel next considers challenging the district court’s application of the two-
level upward adjustment under U.S.S.G. § 2D1.1(b)(1) for possession of a firearm in
connection with a drug offense. Given that police recovered a handgun and rifle
along with more than 400 grams of cocaine from Martinez’s auto repair shop—the
base of his drug selling operation—we agree that it would be frivolous to argue that
the district court erred by applying § 2D1.1(b)(1). As we have often stated, “guns
found in close proximity to drug activity are presumptively connected to that
activity.” United States v. Bothun, 424 F.3d 582, 586 (7th Cir. 2005) (internal
quotation marks and citations omitted); United States v. Corral, 324 F.3d 866, 873
(7th Cir. 2003). Moreover, Martinez did not present any evidence compelling the
district court to find it “clearly improbable” that the two firearms were related to his
drug trafficking. See § 2D1.1, cmt. n.3; Bothun, 424 F.3d at 586.
Counsel also concludes that it would be frivolous to argue that Martinez’s
sentence runs afoul of the Supreme Court’s decision in United States v. Booker, 125
S. Ct. 738 (2005). We agree that Martinez could not plausibly maintain that his
sentence is unreasonable. His sentence was imposed after Booker was decided, and
the district court, as required, based the sentence on the advisory guidelines and
the factors enumerated in 18 U.S.C. § 3553(a). See United States v. Alburay, 415
F.3d 782, 786-87 (7th Cir. 2005); United States v. George, 403 F.3d 470, 472-73 (7th
Cir. 2005). The district court imposed a sentence within the advisory guideline
range, which we take to be properly computed because there is no nonfrivolous
basis for challenging the district court’s calculation. The sentence is therefore
presumed reasonable, see United States v. Williams, 425 F.3d 478, 481 (7th Cir.
2005); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005), and counsel
identifies no basis for rebutting the presumption.
Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.