United States v. Gerardo Baez-Leyva , 380 F. App'x 555 ( 2010 )

NONPRECEDENTIAL DISPOSITION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 June 16, 2010
Decided June 17, 2010
Before
RICHARD D. CUDAHY, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 09-4119 Appeal from the
United States District Court for the
UNITED STATES OF AMERICA, Northern District of Illinois,
Plaintiff-Appellee, Eastern Division.
v. No. 08 CR 981-1
GERARDO BAEZ-LEYVA, Ruben Castillo,
Defendant-Appellant. Judge.
ORDER
Gerardo Baez-Leyva, a courier for the Sinaloa Cartel, a Mexican drug-trafficking
organization, delivered twenty kilograms of heroin to an undercover DEA agent. He
pleaded guilty to conspiracy to possess with intent to distribute heroin, 21 U.S.C. §§ 846,
841(a), and the district court sentenced him to 135 months’ imprisonment, the low end of
the guidelines range. Baez-Leyva appeals, but his appointed lawyer seeks to withdraw
because he has concluded that there are no meritorious issues to pursue. See Anders v.
California, 386 U.S. 738 (1967). Baez-Leyva did not respond to our invitation to comment on
counsel’s motion. See CIR. R. 51(b). We limit 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).
Baez-Leyva informed counsel that he does not want his guilty plea vacated, so
No. 09-4119 Page 2
counsel properly omits any discussion of the adequacy of the plea colloquy or the
voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir. 2002).
Counsel first considers whether Baez-Leyva could challenge the district court’s
finding that he was ineligible for the “safety valve,” which provides a two-point decrease in
offense level for certain nonviolent, first-time drug offenders and permits the district court
to impose a sentence below a statutory minimum. 18 U.S.C. § 3553(f); U.S.S.G.
§§ 2D1.1(b)(11), 5C1.2. To qualify for the safety valve, a defendant must, among other
things, truthfully provide to the government “all information and evidence” he has
“concerning the offense or offenses that were part of the same course of conduct or of a
common scheme or plan.” U.S.S.G. § 5C1.2(a)(5). At sentencing the government argued
that Baez-Leyva had not satisfied this requirement because he insisted at his safety-valve
proffer that the twenty-kilogram delivery (worth roughly a million dollars) was his sole
involvement with the cartel. Baez-Leyva responded that there was no direct evidence that
his role had been more extensive than he admitted, but the government argued, and the
district court agreed, that a stranger to a large-scale drug-trafficking organization would not
have been entrusted with such a valuable delivery. Baez-Leyva had the burden of proving
that he provided a full and honest disclosure to the government, and we would review for
clear error the district court’s finding that he failed to meet this burden. See United States v.
Montes, 381 F.3d 631, 634 (7th Cir. 2004). Baez-Leyva simply asserted through counsel that
he had been forthright during the proffer, but this was insufficient to demonstrate his
eligibility for the safety valve. See id. at 637; United States v. Ponce, 358 F.3d 466, 468 (7th Cir.
2004). In light of the improbability that the cartel would have assigned Baez-Leyva a
million-dollar delivery as his first task, we agree with counsel that it would be frivolous to
argue that the district court’s finding is clearly erroneous.
Counsel also considers whether Baez-Leyva could challenge the reasonableness of
his prison sentence. On appeal we would presume Baez-Leyva’s within-guidelines sentence
to be reasonable, see United States v. Zohfeld, 595 F.3d 740, 743 (7th Cir. 2010), and we see
nothing in the record that would rebut this presumption. The district court imposed
sentence only after considering the factors under 18 U.S.C. § 3553(a), particularly the very
large quantity of heroin involved, and we therefore agree with counsel that any challenge to
the reasonableness of Baez-Leyva’s sentence would be frivolous.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.