United States v. Diaz, Alfonso , 252 F. App'x 743 ( 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NONPRECEDENTIAL DISPOSITION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 October 17, 2007
Decided October 18, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 07-2050
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the
Eastern District of Wisconsin
v.
No. 06-CR-306
ALFONSO DIAZ,
Defendant-Appellant. J. P. Stadtmueller,
Judge.
ORDER
Alfonso Diaz, a Mexican citizen, pleaded guilty to being in the United States
without permission after he was deported following a conviction for an aggravated
felony. 8 U.S.C. § 1326(a), (b)(2). The district court determined that Diaz’s prior
conviction was for a crime of violence, sexual abuse of a minor, and calculated a
guidelines imprisonment range of 46 to 57 months. The court sentenced Diaz to 46
months’ imprisonment and three years’ supervised release. Diaz filed a timely
notice of appeal, but his appointed counsel now moves to withdraw because he
cannot discern a nonfrivolous basis for appeal. See Anders v. California, 386 U.S.
738, 744 (1967). We invited Diaz to respond to counsel’s brief, see Cir. R. 51(b), but
he has not responded. We therefore limit our review to the potential issues
No. 07-2050 Page 2
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 Diaz could challenge his sentence as
unreasonable. Counsel advises, however, that the district court properly calculated
Diaz’s guidelines range, considered the factors set forth in 18 U.S.C. § 3553(a), and
addressed and rejected Diaz’s mitigating arguments, United States v. Laufle, 433
F.3d 981, 987-88 (7th Cir. 2006), before imposing a sentence at the bottom of the
resulting guidelines range. The district court noted that it had in the past ordered
below-guidelines sentences due to sentencing disparities resulting from the lack of a
“fast-track” program in the Eastern District of Wisconsin, but those sentences had
been overturned. Recognizing that the absence of a “fast-track” program was not a
proper basis for imposing a below-guidelines sentence, the court found that no
factor under 18 U.S.C. § 3553(a) justified a below-guidelines sentence. Instead, the
district court found that illegal immigration is “a very significant problem” and
that, to deter illegal immigrants, Diaz would “have to go to jail.” See 18 U.S.C.
§ 3553(a)(1), (2)(A), (2)(B). Counsel notes that this court accords sentences within
the properly calculated guidelines range a rebuttable presumption of
reasonableness. United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). The
Supreme Court recently upheld the use of such a rebuttable presumption, see Rita
v. United States, 127 S. Ct. 2456, 2463 (2007); United States v. Sachsenmaier, 491
F.3d 680, 685 (7th Cir. 2007), and we agree with counsel that any potential
challenge to the reasonableness of Diaz’s sentence would be frivolous.
Counsel next considers whether Diaz could argue that the lack of a “fast-
track” program in the Eastern District of Wisconsin subjected him to an
unwarranted sentencing disparity as compared to sentences of defendants in
districts with a “fast-track” program. But counsel correctly notes that we have
repeatedly held that the absence of a “fast-track” program in the sentencing district
does not make a within-guidelines sentence unreasonable. United States v. Roche-
Martinez, 467 F.3d 591, 595-96 (7th Cir. 2006); United States v.
Rodriguez-Rodriguez, 453 F.3d 458, 462-463 (7th Cir. 2006); United States v.
Galicia-Cardenas, 443 F.3d 553, 555 (7th Cir. 2006). Thus, we agree with counsel
that this potential argument would be frivolous.
Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is
DISMISSED.