United States v. Charles Persico , 476 F. App'x 654 ( 2012 )

NONPRECEDENTIAL DISPOSITION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 May 23, 2012
Decided May 23, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
KENNETH F. RIPPLE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 11-3494
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Western Division.
v. 10 CR 50019-2
CHARLES P. PERSICO, Frederick J. Kapala,
Defendant-Appellant. Judge.
ORDER
For more than eight years Charles Persico participated in a scheme to grow
marijuana and sell it to dealers. Persico pleaded guilty to conspiring to manufacture and
distribute over 1,400 kilograms of marijuana, 21 U.S.C. §§ 846, 841(a)(1). The district court
calculated a guidelines imprisonment range of 135 to 168 months and, aware of the 10-year
statutory penalty, id. § 841(b)(1)(A)(vii), sentenced Persico to 135 months. Persico appeals,
but his appointed counsel moves to withdraw because he cannot identify any nonfrivolous
issues for review. See Anders v. California, 386 U.S. 738 (1967). Persico has not opposed
counsel’s motion. See CIR. R. 51(b). We confine our review to the potential arguments
developed in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973–74
(7th Cir. 2002). Persico has informed counsel that he does not want his guilty plea vacated,
so counsel properly omits any discussion about 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).
No. 11-3494 Page 2
Counsel considers whether Persico could challenge the determination of his criminal-
history category. At sentencing Persico conceded that his prior convictions yield a
criminal-history score of 5, which places him in Category III, but he asked the district court
to disregard the guidelines and assign him to Category I. The district court explained that it
was obligated to correctly calculate the guidelines, see United States v. Lucas, 670 F.3d 784, 791
(7th Cir. 2012); United States v. Brown, 610 F.3d 395, 397 (7th Cir. 2010), and added that, even
as a matter of discretion under 18 U.S.C. § 3553(a), the court believed that Category III
accurately represents Persico’s criminal record, see U.S.S.G. § 4A1.3(b)(1); United States v.
Nicksion, 628 F.3d 368, 378 (7th Cir. 2010); United States v. Turner, 569 F.3d 637, 643 (7th Cir.
2009). Persico has six convictions that did not factor into the calculation of his criminal-
history score because the sentencing courts imposed fines or less than a year’s probation.
See U.S.S.G. § 4A1.2(c)(1). An appellate claim challenging the district court’s assessment that
Persico’s criminal-history category is not overstated would be frivolous given those
uncounted convictions.
Counsel also evaluates whether Persico could challenge the reasonableness of his
prison sentence. But counsel has not identified any reason to disregard the presumption of
reasonableness applicable to sentences within the guidelines range. See Rita v. United States,
551 U.S. 338, 347 (2007); United States v. Pape, 601 F.3d 743, 746 (7th Cir. 2010). The district
court thoroughly addressed the sentencing factors in § 3553(a) and acknowledged that
Persico has the support of his family, but the court also noted his extensive involvement in
the lengthy conspiracy. Thus, counsel is correct that a reasonableness challenge would be
frivolous.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.