United States v. Augustin Zambrano ( 2022 )

NONPRECEDENTIAL DISPOSITION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 April 4, 2022
Decided April 4, 2022
Before
WILLIAM J. BAUER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 21-2279
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division.
v. No. 1:19-CR-00905(2)
AUGUSTIN ZAMBRANO, John Robert Blakey,
Defendant-Appellant. Judge.
ORDER
Augustin Zambrano pleaded guilty to selling methamphetamine to a
confidential source. The district court sentenced him to terms of 160 months’
imprisonment and 5 years’ supervised release, both within the applicable ranges under
the Sentencing Guidelines. Zambrano appeals, but his appointed counsel asserts that
the appeal is frivolous and moves to withdraw. See Anders v. Cal. 386 U.S. 738, 744
(1967). Counsel’s brief explains the nature of the case and raises potential issues that an
appeal like this would typically involve. Because his analysis appears adequate, and
No. 21-2279 Page 2
Zambrano has not independently raised potential issues for appeal, see CIR. R. 51(b), we
limit our review to the subjects that counsel discusses. See United States v. Bey, 748 F.3d
774, 776 (7th Cir. 2014).
Zambrano was originally indicted on five counts (corresponding to five sales) of
distributing methamphetamine, with a prior conviction and sentence for a serious drug
felony. See 21 U.S.C. §§ 841(a)(1)(A), 851. He later pleaded guilty to a superseding
information that charged him with one count of distributing more than 50 grams of
methamphetamine on March 14, 2019. See 21 U.S.C. § 841(a)(1).
According to the plea agreement, on that date, Zambrano sold 54.6 grams of
meth to a confidential source in Zambrano’s home. Over nearly a year, Zambrano had
sold the same source 141.6 grams of cocaine, 695 grams of meth, and 2.9 grams of
heroin. After one controlled buy, Zambrano showed the confidential source a firearm of
his. The plea agreement advised that Zambrano was subject to statutory penalties of a
minimum of 10 years and a maximum of life in prison, and 5 years to life of supervised
release, and it set forth an anticipated range of 121 to 151 months’ imprisonment under
the Sentencing Guidelines. At the change-of-plea hearing, the district court went over
the agreement’s terms and engaged in the required colloquy to ensure that Zambrano’s
plea was knowing and voluntary.
The probation office prepared a presentence investigation report (PSR) that
calculated a guidelines range of 151 to 188 months’ imprisonment based on a total
offense level of 33 and a criminal history category of II. Zambrano objected to a 2-level
increase under U.S.S.G. § 2D1.1(b)(1) for possessing a firearm in connection with drug
trafficking; he argued that neither the firearm he showed the confidential source (in a
nonconfrontational context) nor the two firearms later found in a safe in his home were
related to the drug trafficking. At sentencing, the district court resolved the objection
against Zambrano—finding that it was not “clearly improbable” that the weapon was
connected with the drug trafficking offense—and adopted the PSR’s guidelines
calculations. The government argued for a mid-range sentence of 169 months;
Zambrano argued mitigating circumstances and asked for the statutory minimum of
120 months. The district court settled on a sentence of 160 months in prison and 5 years
of supervised release, noting that no matter the resolution of the guidelines objection, it
would impose the same sentence under the § 3553(a) factors.
Counsel first considers whether to raise a challenge to the guilty plea. He
explains that he advised Zambrano of the risks of such a challenge and confirmed that
Zambrano does not seek to withdraw his plea. Counsel therefore appropriately forgoes
No. 21-2279 Page 3
further discussion of the conviction and considers only potential challenges to
Zambrano’s sentence. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012).
Counsel considers a potential challenge to the calculation of the guidelines range
of imprisonment, specifically the preserved objection to the enhancement: that the
government did not show that any firearm was connected to Zambrano’s drug offense.
But counsel notes that the law presumes a connection if, during a drug sale, “the
weapon was present, unless it is clearly improbable that the weapon was connected
with the offense.” U.S.S.G. § 2D1.1(b)(1) cmt. n.11(A). The district court could justifiably
apply the enhancement given Zambrano’s undisputed display of the gun to the source;
there is no requirement that it be used in a threatening manner. Moreover, because the
court explained that the guidelines objection did not influence its choice of sentence,
any guidelines error could not have prejudiced Zambrano. United States v. Musgraves,
883 F.3d 709, 715 (7th Cir. 2018). Counsel identifies no other potential procedural issues.
Finally, counsel considers and properly rejects a challenge to the substantive
reasonableness of Zambrano’s sentence. The sentence was within a properly calculated
guidelines range, so we presume it to be reasonable. United States v. McDonald, 981 F.3d
579, 581 (7th Cir. 2020). Counsel has not shown anything in the record that would rebut
this presumption. Complying with 18 U.S.C. § 3553(a), the court considered the nature
and circumstances of the offense (saying that the volume of drugs Zambrano sold
“represents a lot of human misery”), characteristics of the defendant (such as his mental
health and relationship with his father), and the need for the sentence to adequately
punish and deter Zambrano’s conduct (noting that a prior 80-month sentence did not
deter him). See United States v. Lockwood, 840 F.3d 896, 903 (7th Cir. 2016). As for
supervised release, counsel notes that the statutory range was five years’ to lifetime
supervision, and the court imposed the minimum term with the same justifications. We
agree that an appeal based on that part of the sentence would be frivolous.
We GRANT counsel’s motion to withdraw and DISMISS the appeal.