United States v. Diaz, Sergio L. , 250 F. App'x 742 ( 2007 )

NONPRECEDENTIAL DISPOSITION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 September 20, 2007
Decided October 11, 2007
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-2449
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division
v.
No. 04 CR 1067
SERGIO L. DIAZ,
Defendant-Appellant. Blanche M. Manning,
Judge.
ORDER
Sergio Diaz was removed from the United States on December 23, 1998, but
he returned the same day. Federal officials apprehended Diaz in 2004 and charged
him with being in the United States without permission after his removal. See 8
U.S.C. § 1326(a). Diaz pleaded guilty in March 2005, and a year later, after two
changes of counsel, the district court sentenced him (below the guidelines range
calculated by the court) to 50 months’ imprisonment and three years’ supervised
release. Diaz filed a notice of appeal, but his appointed lawyer has moved to
withdraw because he cannot discern a nonfrivolous argument for appeal. See
Anders v. California, 386 U.S. 738 (1967). Counsel’s supporting brief is facially
adequate, and Diaz has not responded to counsel’s motion, see Cir. R. 51(b). Our
No. 06-2449 Page 2
review of the record is limited to the potential issues counsel has identified. See
United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
Counsel represents that Diaz does not wish to withdraw his guilty plea or
challenge his conviction; therefore, counsel properly omits any discussion of the plea
and conviction. See United States v. Knox, 287 F.3d 667, 670 (7th Cir. 2002).
Counsel first considers whether Diaz could challenge the district court’s
calculation of his offense level, criminal history score, or guidelines imprisonment
range. Counsel does not dispute the district court’s calculation of the total offense
level, but notes that the court improperly excluded one of Diaz’s previous
convictions from his criminal history score. But this error did not harm Diaz, so we
agree with counsel that it would be frivolous to challenge his sentence on this
ground. See id. at 671. (“[I]t is no failure of advocacy to leave well enough alone.”).
Counsel also examines whether Diaz could argue that the district court did
not adequately account for various sentencing factors, see 18 U.S.C. § 3553(a), or
that the court should have lowered his sentence in light of fast-track programs that
exist in other jurisdictions. Counsel properly concludes that raising these potential
issues would be frivolous. At sentencing the district court noted the letters of
reference submitted on Diaz’s behalf, but concluded that the nature and number of
his prior convictions weighed against him. Moreover, Diaz’s prison sentence is 27
months below the low end of the applicable guidelines range, and counsel does not
point to a factor that would have compelled a further reduction. With regard to the
fast-track “disparity,” we have repeatedly rejected this argument. See United States
v. Roche-Martinez, 467 F.3d 591, 595-96 (7th Cir. 2006); United States v. Rodriguez-
Rodriguez, 453 F.3d 458, 462-63 (7th Cir. 2006). Finally, counsel mentions that the
district court erred in failing to specify the number of drug tests Diaz must undergo
when his period of supervised release begins. Counsel, though, properly concludes
that this potential issue would be frivolous because Diaz did not object at
sentencing and the error is not one that we would deem to be plain error. See
United States v. Tejeda, 476 F.3d 471, 475-76 (7th Cir. 2007).
Therefore, counsel’s motion to withdraw is GRANTED, and the appeal is
DISMISSED.