United States v. Jose Guadalupe Nunez

NONPRECEDENTIAL DISPOSITION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 January 20, 2012
Decided January 20, 2012
Before
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 11-1106
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 09 CR 455-1
JOSE GUADALUPE NUNEZ-GARCIA,
Defendant-Appellant. Amy J. St. Eve,
Judge.
ORDER
Jose Nunez-Garcia was discovered in Illinois in 2009 after having been removed
from the United States four times after incurring a felony drug conviction in 1988. He
pleaded guilty without benefit of a plea agreement to being in the United States illegally
after having been deported. See 8 U.S.C. § 1326(a). After calculating a guidelines
imprisonment range of 77 to 96 months, the district court initially pronounced a prison
sentence of 77 months but then shaved a month off that term, at Nunez-Garcia’s request, to
account for time he spent in immigration custody before being charged in this case. Nunez-
Garcia filed a notice of appeal, but his appointed lawyer has concluded that the appeal is
frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738 (1967). Nunez-
Garcia has not responded to counsel's submission. See CIR. R. 51(b). We confine our review
No. 11-1106 Page 2
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 first considers whether Nunez-Garcia could challenge the adequacy of the
plea colloquy or the voluntariness of his guilty plea. But Nunez-Garcia has given no
indication that he wants his guilty plea set aside, so counsel should have omitted this
discussion. See United States v. Knox, 287 F.3d 667, 670–72 (7th Cir. 2002).
Counsel next evaluates whether Nunez-Garcia could challenge the district court’s
application of the sentencing guidelines. The only concern that Nunez-Garcia raised at
sentencing about the calculation of his guidelines range was whether five of his prior
convictions were too old to count against him under U.S.S.G. § 4A1.2(e) because they were
incurred between 1988 and 1994, long before his illegal presence was discovered. But
raising this concern on appeal would be frivolous. An offense under § 1326(a) begins at the
time of reentry, United States v. Are, 498 F.3d 460, 464 (7th Cir. 2007); United States v.
Lopez-Flores, 275 F.3d 661, 663 (7th Cir. 2001), and Nunez-Garcia’s 14 arrests in Illinois since
his last removal in 1991 corroborate the district court’s finding that he reentered the United
States sufficiently close in time to his challenged convictions for all of them to count under
§ 4A1.2(e). In addition, a challenge to the reasonableness of the prison sentence also would
be frivolous. The district court sentenced Nunez-Garcia below the guidelines range despite
being “particularly troubled” that his four prior removals had not deterred him from
returning to the United States. The sentence is not unreviewable, as counsel asserts, but it is
presumptively reasonable. See United States v. Martinez, 650 F.3d 667, 671 (7th Cir. 2011);
United States v. Berg, 640 F.3d 239, 254 (7th Cir. 2011). There is no indication that the
sentence is unreasonable, and we thus agree with counsel that challenging the sentence
would be frivolous.
We GRANT counsel’s motion to withdraw and DISMISS the appeal.