NONPRECEDENTIAL DISPOSITION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 April 5, 2013
Decided April 9, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12‐3690
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellant, Court for the Western District of Wisconsin.
v. No. 12‐CR‐106‐BBC‐01
SANTIAGO GUATEMALA‐PACHECO, Barbara B. Crabb,
Defendant‐Appellee. Judge.
O R D E R
Santiago Guatemala‐Pacheco, a Mexican citizen, has been removed from the United
States five times. In July 2012 immigration authorities found him in the country yet again,
and he was charged with violating
8 U.S.C. § 1326(a). He pleaded guilty and was sentenced
to 15 months’ imprisonment. He filed a notice of appeal, but his appointed lawyer contends
that the appeal is frivolous and seeks to withdraw under Anders v. California,
386 U.S. 738
(1967). Guatemala‐Pacheco has not responded to counsel’s submission. See CIR. R. 51(b). We
confine our review to the potential issues identified in counsel’s facially adequate brief.
See United States v. Schuh,
289 F.3d 968, 973–74 (7th Cir. 2002).
No. 12‐3690 Page 2
Counsel first explains that she telephoned Guatemala‐Pacheco’s prison in
Mississippi but was unable to speak with him to confirm her understanding that he wants
only to challenge his sentence, not his guilty plea. See United States v. Konczak,
683 F.3d 348,
349–50 (7th Cir. 2012); United States v. Knox,
287 F.3d 667, 670–72 (7th Cir. 2002). And though
a prison employee confirmed delivery of her message asking the defendant to call, she has
not heard from him. Guatemala‐Pacheco’s silence, including the lack of opposition to
counsel’s Anders brief, suggests that she is correct that the defendant is satisfied with his
guilty plea. In any event, an appellate claim about the plea colloquy or the voluntariness of
Guatemala‐Pacheco’s guilty plea would be frivolous. He did not move in the district court
to withdraw his plea, so our review would be limited to a search for plain error. See United
States v. Vonn,
535 U.S. 55, 62–63 (2002); United States v. Kilcrease,
665 F.3d 924, 927
(7th Cir. 2012). The defendant could not satisfy that stringent standard because, as
evidenced by the transcript of the plea colloquy, the district court substantially complied
with Federal Rule of Criminal Procedure 11 in assuring that Guatemala‐Pacheco understood
the charge, the penalties he faced, and the rights he was waiving by pleading guilty. See
Konczak, 683 F.3d at 349–50; United States v. Shuh,
289 F.3d 968, 974 (7th Cir. 2002).
Counsel also discusses whether Guatemala‐Pacheco could raise a nonfrivolous
challenge to his prison sentence and concludes that he could not. The defendant’s sentence
of 15 months is at the bottom of the guidelines range of 15 to 21 months’ imprisonment
resulting from his Category II criminal history and total offense level of 13 (a base offense
level of 8, see U.S.S.G. § 2L1.2(a), plus another 8 levels because he was removed after a
conviction for a felony drug trafficking offense, see id. § 2L1.2(b)(1)(B), less 3 levels for
acceptance of responsibility, see id. § 3E1.1). This range, we agree with counsel, is correctly
calculated, entitling Guatemala‐Pacheco’s within‐guidelines sentence to a presumption of
reasonableness. See Rita v. United States,
551 U.S. 338, 347 (2007); United States v. Baker,
655
F.3d 677, 683 (7th Cir. 2011). And Guatemala‐Pacheco cannot rebut this presumption
because the district court also properly applied the sentencing factors of
18 U.S.C. § 3553(a),
taking into account his upbringing, family responsibilities, lack of substance abuse,
confinement to a wheelchair, and multiple removals from the United States before his most
recent arrest.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
