United States v. Najera, Victor

NONPRECEDENTIAL DISPOSITION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 February 15, 2007*
Decided October 25, 2007
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 06-3031
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division
v.
No. 00 CR 274-5
VICTOR NAJERA,
Defendant-Appellant. Matthew F. Kennelly,
Judge.
ORDER
Victor Najera purchased ten kilograms of cocaine from Juan Mares-Martinez
and then hired Arturo Gutierrez to deliver the drugs to a customer. With the aid of
a wiretap on Mares-Martinez’s phone, special agents from the Drug Enforcement
Administration thwarted the effort and seized the cocaine from Gutierrez’s car.
Najera pleaded guilty to conspiring to distribute cocaine, see 21 U.S.C. §§ 846,
841(a)(1), and the district judge sentenced him to 168 months’ imprisonment. We
vacated that sentence and ordered resentencing, however, after the district judge
explained that he might have imposed a lower sentence had he treated the
guidelines as advisory in accordance with United States v. Booker, 543 U.S. 220(2005). See United States v. Najera, 169 F. App’x 995 (7th Cir. 2006) (unpublished
*
This successive appeal has been assigned to the original panel under
Operating Procedure 6(b).
No. 06-3031 Page 2
order). The court then resentenced Najera to 144 months’ imprisonment, along
with five years’ supervised release and a $100 special assessment. Najera appeals
his new sentence, but his court-appointed attorney moves to withdraw because he
cannot discern a nonfrivolous basis for appeal. See Anders v. California, 386 U.S.
738 (1967). Najera has responded to his attorney’s motion, see Cir. R. 51(b), and
counsel’s brief is facially adequate, so we confine our review of the record to the two
potential issues identified by counsel and Najera. See United States v. Schuh, 289
F.3d 968, 973-74 (7th Cir. 2002).
Counsel considers whether Najera could argue that his 144-month term of
imprisonment, which falls below the advisory guidelines range of 168 to 210
months, is unreasonably high. At his resentencing, Najera asked for the statutory
minimum sentence of 120 months’ imprisonment, arguing that the guidelines
overstate the gravity of his pretrial flight and his criminal history, and that his
steady lawful employment and strong family ties show that he can be a productive
and law-abiding member of society. Counsel notes that the district judge
considered these arguments, along with other statutory sentencing factors. See 18
U.S.C. § 3553(a). The court observed that Najera was involved in criminal conduct
that “preys on people who have a very difficult time protecting themselves” and
precipitates collateral crime, see id. § 3553(a)(1); that he played a “significant” role
in the conspiracy, see id.; and that he showed disrespect for the law by fleeing the
state while on pretrial release, see id. § 3553(a)(2)(A). The district judge reasoned
that these factors warranted a 144-month prison term even if, as Najera
maintained, the likelihood of recidivism was low, see id. § 3553(a)(2)(B),(C). Given
the court’s careful weighing of these factors, counsel properly concludes that it
would be frivolous to challenge the reasonableness of Najera’s below-guidelines
sentence. See United States v. George, 403 F.3d 470, 473 (7th Cir. 2005) (noting
that “[i]t is hard to conceive of below-range sentences that would be unreasonably
high”); Rita v. United States, 127 S. Ct. 2456, 2468-69 (2007); United States v.
Laufle, 433 F.3d 981, 987 (7th Cir. 2006).
Najera, for his part, contends that he could mount a challenge to the
sentencing court’s reliance on facts that were not proven beyond a reasonable doubt,
which he says led the court to sentence him above the statutory minimum of 120
months’ imprisonment. See 21 U.S.C. §§ 846, 841(b)(1)(A). But it would be
frivolous to contest his sentence on this ground; in calculating a guidelines range,
the sentencing judge is entitled to make findings based on a preponderance of the
evidence, provided that he treats the guidelines as advisory—which on this record
the judge plainly did. See United States v. White, 472 F.3d 458, 464 (7th Cir. 2006);
United States v. LaShay, 417 F.3d 715, 719 (7th Cir. 2005); United States v. Bryant,
420 F.3d 652, 655-56 (7th Cir. 2005).
The motion to withdraw is GRANTED, and the appeal is DISMISSED.