NONPRECEDENTIAL DISPOSITION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 4, 2011
Decided May 5, 2011
Before
ILANA DIAMOND ROVNER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 10‐3095
Appeal from the United States District
UNITED STATES OF AMERICA, Court for the Northern District of Illinois,
Plaintiff‐Appellee, Eastern Division.
v. No. 08 CR 774‐7
SALVADOR VALENCIA, Matthew F. Kennelly
Defendant‐Appellant. Judge.
O R D E R
Salvador Valencia was charged with distributing more than 500 grams of cocaine,
18
U.S.C. § 841(a)(1), after Drug Enforcement agents arrested him for brokering the sale of one
kilogram of cocaine on behalf of a large‐scale drug ring in Chicago. He pleaded not guilty
and went to trial, at which he presented no evidence or testimony in his defense. A jury
convicted him, and the district court sentenced him to 63 months’ imprisonment, the bottom
of his guidelines range and three months above the minimum penalty required by the
statute. See
21 U.S.C. § 841(b)(1)(B)(ii)(II). Valencia filed a notice of appeal, but his appointed
lawyer moves to withdraw because he cannot identify a nonfrivolous argument to pursue.
See Anders v. California,
386 U.S. 738 (1967). Valencia has not responded to counsel’s
No. 10‐3095 Page 2
submission. See CIR. R. 51(b). 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 considers whether Valencia might raise a challenge in connection with the
sole pretrial issue preserved for appeal – namely, the government’s submission of ex parte
materials to the district court. These materials consisted of evidence suggesting that
Valencia conducted other illegal drug transactions while he was free on bond. The
government asked the court to verify that it had no duty to disclose the evidence to the
defense under Brady v. Maryland,
373 U.S. 83 (1963). Valencia’s trial counsel claimed that he
was instructed by the district court not to discuss the substance of a minute order regarding
these materials (made public due to clerical error) with Valencia or anybody else. Counsel
now asks whether Valencia could argue that the district court’s silencing instruction
violated his Sixth Amendment right to counsel or, alternatively, that his attorney provided
ineffective assistance by failing to object to the court’s instruction. Counsel concludes that
either argument would be frivolous, and we agree. To prevail on either claim, Valencia
would have to introduce substantial evidence that is not in the appellate record (e.g., facts
about his attorney’s strategy) in order to prove that the error was prejudicial; such claims
are more appropriately raised in a habeas corpus petition, rather than on direct appeal. See
Massaro v. United States,
538 U.S. 498, 504‐6 (2003); United States v. Harris,
394 F.3d 543, 558
(7th Cir. 2005).
In general terms, counsel also considers arguing that the ex parte submission violated
Valencia’s due process rights, but he correctly concludes that any such argument would be
frivolous. Ex parte presentation of evidence is disfavored because it typically denies due
process. See Sonnleitner v. York,
304 F.3d 704, 715 (7th Cir. 2002). But here the ex parte
materials were recordings and statements from confidential informants that linked Valencia
to unrelated drug transactions. The district court rightly decided that the sensitive nature of
these materials justified ex parte submission – disclosure through normal means could have
threatened the safety of the informants by exposing their identities or jeopardized the
governmentʹs investigation of the other players involved in Valencia’s deals. See United
States v. Nava‐Salazar,
30 F.3d 788, 800‐01 (7th Cir. 1994).
Relatedly, counsel considers whether Valencia could argue that the government was
required to disclose the ex parte materials under Brady,
373 U.S. at 86. But the district court
screened the materials and determined that they were not exculpatory; the evidence was
actually inculpatory for several unrelated drug crimes. Counsel rightly concludes that
alleging a Brady violation based on the ex parte materials would thus be frivolous. See United
States v. Neal,
611 F.3d 399, 401 (7th Cir. 2010).
No. 10‐3095 Page 3
Counsel also considers arguing that the jury convicted Valencia based on insufficient
evidence, but this argument would be frivolous because there was ample evidence to
support a conviction. The government introduced recorded phone conversations, telephone
records, eyewitness testimony, and testimony from a cooperating co‐defendant, all
corroborating that Valencia brokered a deal for a kilogram of cocaine that was exchanged at
Valenciaʹs house. An appeal challenging a jury conviction for lack of sufficient evidence
normally faces a “nearly insurmountable hurdle” to succeed – we will affirm unless no
reasonable jury could have convicted the defendant based on the evidence as viewed in the
light most favorable to the government. See United States v. Spagnola,
632 F.3d 981, 986 (7th
Cir. 2011). It would be frivolous to argue that the government’s case against Valencia did
not meet that standard.
Counsel finally considers generally whether Valencia could challenge his sentence,
but properly concludes that any such challenge would be frivolous. The court correctly
calculated Valencia’s guidelines range (63 to 78 months). Valencia’s sentence of 63 months is
presumptively reasonable because it is within the guidelines range, see Rita v. United States,
551 U.S. 338 (2007); United States v. Portman,
599 F.3d 633, 636 (7th Cir. 2010), and counsel is
unable to articulate any basis to upset that presumption. The court adequately justified
choosing a bottom‐of‐the‐range sentence: although a long sentence may have seemed
excessive given Valencia’s advancing age (58), the court decided that he deserved more than
the 5‐year statutory minimum because he committed other drug crimes when he was out on
bond. The court directly tied its reasoning to §3553(a) factors (e.g., defendant’s
characteristics, promoting respect for the law); the court was required to do no more. See
United States v. Coopman,
602 F.3d 814, 819 (7th Cir. 2010).
The motion to withdraw is GRANTED, and the appeal is DISMISSED.
