United States v. Romero, Lizandro

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 18, 2005
Decided August 24, 2005
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-1637
Appeal from the United States
UNITED STATES OF AMERICA, District Court for the Northern
Plaintiff-Appellee, District of Illinois, Eastern Division
v. No. 04-CR-74-1
LIZANDRO ROMERO, Wayne R. Andersen,
Defendant-Appellant. Judge.
ORDER
Lizandro Romero pleaded guilty to being in the United States without
authorization after his removal on the basis of an aggravated felony conviction. See 8
U.S.C. § 1326(a), (b)(2). He was sentenced to 57 months’ imprisonment. Romero filed
a notice of appeal, but his appointed lawyer now seeks to withdraw because he cannot
discern a nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738 (1967).
Counsel’s brief in support of his motion is facially adequate, and so we limit our review
to the potential issues he identifies along with those in Romero’s response filed under
Circuit Rule 51(b). See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997). We
conclude that all of these potential issues on appeal are frivolous and therefore grant
counsel’s motion to withdraw and dismiss Romero’s appeal.
No. 05-1637 Page 2
Romero was apprehended during a routine traffic stop in Rolling Meadows,
Illinois, in January 2004. A roadside name-check revealed that he was removed to
Mexico in December 2001 following two related convictions for delivery of a controlled
substance. At his sentencing hearing in February 2005, Romero testified that he
returned to the United States because his parents brought him here at age four and
he no longer has any family or friends living in Mexico. The district court, mindful of
Romero’s reasons for re-entering and the discretionary nature of the guidelines,
nonetheless declined to sentence Romero below the guideline minimum based on what
it characterized as Romero’s “unrelenting” criminal history.
Counsel first discusses the possibility of challenging the voluntariness of
Romero’s guilty plea based on purported deficiencies in the plea colloquy. See Fed. R.
Crim. P. 11. But counsel does not represent that Romero wants his guilty plea set
aside. We have held that appointed lawyers seeking to withdraw under Anders should
not even explore the propriety of a guilty plea unless the defendant says he wants to
unwind the plea, and therefore counsel should not have addressed this potential
argument. United States v. Knox, 287 F.3d 667, 670-71 (7th Cir. 2002).
Next counsel considers whether Romero’s aggravated felony convictions were
“double-counted” because they were used to calculate both his offense level and his
criminal history category under the guidelines. This argument would be frivolous
because the use of a prior conviction for more than one purpose under the guidelines
is not prohibited. See U.S.S.G. § 2L1.2(b)(1)(A)(I) & cmt. n.6; see also United States v.
Beith, 407 F.3d 881, 888 (7th Cir. 2005) (explaining that “double counting” is permitted
except where the guidelines include express prohibition or suggest compelling basis for
implying prohibition); United States v. Harris, 41 F.3d 1121, 1123 (7th Cir. 1994)
(same).
Romero contends in his Rule 51(b) response that despite the fact that he was
sentenced after Booker, his attorney could argue that his offense level was improperly
increased, see U.S.S.G. § 2L1.2(b)(1)(A), because the judge and not a jury determined
that his prior convictions qualified him for the higher offense level. This argument
would be frivolous because, after Booker, findings of fact that affect only the guideline
range do not raise constitutional concerns since the judge is no longer required to
impose the guideline sentence. See United States v. Dean, No. 04-3172, 2005 WL
1592960 (7th Cir. July 7, 2005).
Finally, both Romero and his lawyer consider whether it would be frivolous to
argue that the district court imposed an unreasonable sentence when it declined to
reduce Romero’s sentence below the guideline minimum based on Romero’s cultural
assimilation and status as a deportable alien. A sentence within a properly calculated
guideline range is presumptively reasonable, see United States Mykytiuk, No. 04-1196,
2005 WL 1592956, at *1 (7th Cir. July 7, 2005). The district court evaluated his
arguments against the factors set forth in 18 U.S.C. § 3553(a), but the court was not
No. 05-1637 Page 3
compelled to accept Romero’s arguments for a sentence below the guideline range. We
do not see anything in those arguments that would suggest any basis for appeal.
Counsel's motion to withdraw is GRANTED, and the appeal is DISMISSED .