United States v. Guillermo Rivera , 338 F. App'x 532 ( 2009 )

NONPRECEDENTIAL DISPOSITION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 July 22, 2009
Decided July 22, 2009
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 08-3890
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 06 CR 396
GUILLERMO RIVERA,
Defendant-Appellant. Samuel Der-Yeghiayan,
Judge.
ORDER
In the spring of 2006, Guillermo Rivera embarked on a bank-robbery spree, hitting at
least four Illinois banks on four separate occasions. Each time he disguised himself by
wearing either a dreadlock wig or a shirt with security-guard insignia, handed the teller a
demand note, took whatever funds the teller handed over, and fled. In all he got away
with over $16,000. Federal investigators caught up with Rivera in Indiana, where his string
of bank robberies had continued. Indictments followed in both the Northern District of
Indiana and the Northern District of Illinois. In the latter district Rivera pleaded guilty to
four counts of bank robbery, see 18 U.S.C. § 2113(a), and was sentenced to a total of 104
months’ imprisonment. Rivera has filed notice of appeal from that judgment, but his
No. 08-3890 Page 2
appointed attorney has moved to withdraw because he is unable to identify a nonfrivolous
basis for appeal. See Anders v. California, 386 U.S. 738 (1967). We invited Rivera to comment
on counsel's motion, see C IR. R. 51(b), but he has not responded. Thus, our review is limited
to the potential issues identified in counsel’s supporting brief. See United States v. Schuh,
289 F.3d 968, 973-74 (7th Cir. 2002).
Counsel does not explore whether Rivera could argue that his guilty plea was not
knowing and voluntary. That omission is appropriate, however, because Rivera has not
indicated that he wants his plea set aside. See United States v. Knox, 287 F.3d 667, 670-71
(7th Cir. 2002). Accordingly, counsel properly limits his discussion to Rivera’s potential
sentencing challenges.
First, counsel considers whether Rivera could argue that the district court erred in
computing his criminal history category. At sentencing the court assigned Rivera a total of
ten criminal history points with a resulting category of V. The first nine points derived
from two felony convictions for theft and one for aggravated assault; an intervening arrest
separated each crime, and Rivera received separate sentences for each conviction. Any
challenge to the court’s decision to treat the convictions as separate in calculating Rivera’s
criminal history would thus be frivolous. See U.S.S.G. § 4A1.2(a)(2); United States v. Morgan,
354 F.3d 621, 623 (7th Cir. 2003). Rivera’s tenth criminal history point resulted from the
pending indictment in the Northern District of Indiana; Rivera had pleaded guilty to three
more counts of bank robbery in that district and was awaiting sentencing when the district
court imposed the sentence in this case. See U.S.S.G. § 4A1.2(a)(4); United States v. Duncan,
230 F.3d 980, 987 (7th Cir. 2000).
Counsel next recognizes that, at sentencing, Rivera and the government agreed that
his total offense level should be 24, and so Rivera waived any challenge to this
determination. See United States v. Adcock, 534 F.3d 635, 641-42 (7th Cir. 2008); United States
v. Cunningham, 405 F.3d 497, 502 (7th Cir. 2005). Counsel then turns to the only remaining
potential argument: whether Rivera could challenge the reasonableness of his overall
prison sentence. Rivera’s total offense level of 24, combined with his criminal history
category of V, resulted in a guidelines imprisonment range of 92 to 115 months. The
district court sentenced Rivera in the middle of this range. In arriving at this sentence the
court considered the factors under 18 U.S.C. § 3553(a), including Rivera’s close family
connections and previous stable work history as well as the dangerousness of bank
robberies and the need for deterrence. Because the court sentenced Rivera to a term within
a properly calculated guidelines range and gave due consideration to the § 3553(a) factors,
we presume that this sentence is reasonable. See Rita v. United States, 127 S. Ct. 2456, 2462
(2007); United States v. Williams, 553 F.3d 1073, 1083 (7th Cir. 2009). Counsel has identified
No. 08-3890 Page 3
no reason why the presumption should not apply in Rivera’s case, and therefore we concur
that any reasonableness challenge would be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.