United States v. Reyes-Campos ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 13, 2005
Decided September 14, 2005
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-1600
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Western District
of
v. Wisconsin
ARMANDO REYES-CAMPOS, No. 04-CR-161-S-01
Defendant-Appellant.
John C. Shabaz,
Judge.
ORDER
Mexican citizen Armando Reyes-Campos was removed from the United
States in July 2003, just days after Wisconsin paroled him to immigration
authorities. He reentered the United States in October 2003 and made his way
back to Wisconsin, where police stopped him for a traffic violation in May 2004.
State authorities first revoked his parole and returned Reyes-Campos to prison, and
then in December 2004 he pleaded guilty in federal court to being in the United
States without permission after his removal. See 8 U.S.C. § 1326(a). In February
2005 the district court sentenced him to 70 months’ imprisonment, to run
consecutively to the Wisconsin sentence. Reyes-Campos filed a notice of appeal, but
his appointed counsel moves to withdraw because he cannot discern a nonfrivolous
basis for the appeal. See Anders v. California, 386 U.S. 738 (1967). We invited
No. 05-1600 Page 2
Reyes-Campos to comment on counsel’s motion, see Cir. R. 51(b), but he has not
done so. Our review is limited to the potential issues counsel has identified.
See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997).
To start, we note counsel’s representation that Reyes-Campos has not
expressed a desire to have his guilty plea set aside. Accordingly, counsel
appropriately avoids any discussion of the plea colloquy or the voluntariness of
Reyes-Campos’ guilty plea. See United States v. Knox, 287 F.3d 667, 670-71 (7th
Cir. 2002).
That leaves only the sentence, and counsel first questions whether Reyes-
Campos might have a nonfrivolous issue based on United States v. Booker, 125
S. Ct. 738 (2005). Counsel explains that a Booker argument would be frivolous
because the district court, in choosing an appropriate sentence, correctly calculated
the advisory guideline range and considered that range along with the other factors
in 18 U.S.C. § 3553(a). We agree. See United States v. Alburay, 415 F.3d 782, 786-
87 (7th Cir. 2005); United States v. Dean, 414 F.3d 725, 728 (7th Cir. 2005). And
since the sentence imposed is at the low end of the 70- to 87-month guideline range,
we also conclude that it would be frivolous for Reyes-Campos to argue on this record
that the sentence is unreasonable. See United States v. Bryant, 2005 WL 2000981,
at *5 (7th Cir. Aug. 22, 2005); United States v. Mykytiuk, 415 F.3d 606, 608 (7th
Cir. 2005).
Counsel also questions whether Reyes-Campos might argue that the district
court should have run his federal sentence concurrently with the remainder of his
Wisconsin prison term. A district court has discretion to impose a federal sentence
consecutively to an undischarged state sentence, see 18 U.S.C. § 3584(a);
Romandine v. United States, 206 F.3d 731, 737 (7th Cir. 2000), and here the court
explicitly opted for a consecutive term because of the perceived need to “provide an
incremental penalty, protect the community, and afford adequate deterrence to
criminal conduct.” Reyes-Campos had promised the probation officer he would
return again if removed from the United States after his release from federal
prison; that vow shows that any disagreement with the court’s application of
§ 3584(a) would be frivolous.
Accordingly, we GRANT counsel's motion to withdraw and DISMISS this
appeal.