United States v. Steven Romero , 291 F. App'x 776 ( 2008 )

NONPRECEDENTIAL DISPOSITION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 August 14, 2008
Decided August 22, 2008
Before
RICHARD D. CUDAHY, Circuit Judge
DANIEL A. MANION, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08-1302
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of Wisconsin.
v. No. 07-CR-180
STEVEN ROMERO, Rudolph T. Randa,
Defendant-Appellant. Chief Judge.
ORDER
Steven Romero pleaded guilty to threatening to murder a member of the immediate
family of a United States magistrate judge. See 18 U.S.C. § 115(a)(1)(A). Because Romero
already had at least two felony convictions for crimes of violence, the district court found
that he qualified as a career offender, see U.S.S.G. § 4B1.1, and sentenced him to 96 months’
imprisonment and 3 years’ supervised release. Romero filed a notice of appeal, but his
appointed attorney has moved to withdraw because he cannot discern a nonfrivolous basis
No. 08-1302 Page 2
for appeal. See Anders v. California, 386 U.S. 738 (1967). Romero did not respond to our
invitation to comment on counsel’s motion, see C IR. R. 51(B), and so 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).
Counsel first considers whether Romero could argue that the district court erred in
sentencing him as a career offender. See U.S.S.G. § 4B1.1. Counsel, though, is unable to
articulate any conceivable disagreement with the court’s ruling, and nor are we. A
defendant convicted of committing a crime of violence or controlled substance offense
qualifies as a career offender if he was at least 18 years old at the time and already had two
or more felony convictions for such crimes. Id. § 4B1.1(a); United States v. Rice, 520 F.3d 811,
820 (7th Cir. 2008). Romero is 36, and his felony convictions for threatening to murder a
magistrate judge and threatening to harm a corrections supervisor are crimes of violence,
see United States v. Ladwig, 432 F.3d 1001, 1005 (9th Cir. 2005) (holding that a threat to harm
another person is a crime of violence); see also U.S.S.G. § 4B1.2(a) (defining “crime of
violence” to include any offense having as an element the “threatened use of physical force
against the person of another.”), which Romero did not dispute at sentencing. Thus, any
argument that Romero is not a career offender would be frivolous.
Counsel next contemplates challenging the reasonableness of Romero’s 96-month
prison sentence but concludes that any such argument would be frivolous. We agree. A
sentence within a correctly calculated guidelines range is presumptively reasonable. Rita v.
United States, 127 S. Ct. 2456, 2462 (2007); United States v. Harvey, 516 F.3d 553, 556 (7th Cir.
2008). In assessing reasonableness, we ask whether the district court gave “meaningful
consideration” to the sentencing factors set forth in 18 U.S.C. § 3553(a). United States v.
Shannon, 518 F.3d 494, 496 (7th Cir. 2008). Here, the district court properly calculated a
guidelines range of 77 to 96 months and imposed a term within that range after taking into
account the factors in § 3553(a), including Romero’s criminal history, mental illnesses, and
the danger he presents to others. Counsel cannot identify any basis for concluding that
Romero’s sentence might be the exception to Rita’s presumption of reasonableness, nor can
we.
To the extent that counsel has assessed whether Romero was adequately
represented in the district court, any potential claim about his lawyer’s performance would
be better pursued in a collateral proceeding under 28 U.S.C. § 2255 because the claim
would turn on matters not in the record, see, e.g., Massaro v. United States, 538 U.S. 500, 504-
05 (2003); United States v. Parker, 469 F.3d 1074, 1075 n.1 (7th Cir. 2006), and because Romero
is still represented by the same lawyer, see United States v. Rezin, 322 F.3d 443, 445 (7th Cir.
2003).
No. 08-1302 Page 3
For the above reasons, counsel’s motion to withdraw is GRANTED, and the appeal
is DISMISSED.