United States v. Alfonso Lucena

NONPRECEDENTIAL DISPOSITION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 November 26, 2013
Decided November 26, 2013
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 13-1770
Appeal from the United States District
UNITED STATES OF AMERICA, Court for the Northern District of Illinois,
Plaintiff-Appellee, Eastern Division.
v. No. 11 CR 620-2
ALFONSO LUCENA, Charles P. Kocoras,
Defendant-Appellant. Judge.
ORDER
An undercover police officer arranged through Juan Vellalva to buy almost six
kilograms of heroin worth about $300,000. Vellalva accompanied the officer to a
supermarket parking lot where they were joined by the defendant, Alfonso Lucena.
Lucena instructed the officer to drive to a laundromat, where another man was waiting
with a book bag containing the heroin. Surveillance agents swept in and arrested the
participants after Lucena had retrieved the book bag and passed it to the undercover
officer.
Lucena pleaded guilty to distributing heroin. See 21 U.S.C. § 841(a)(1). The
district court sentenced him to 120 months’ imprisonment, the statutory minimum for
No. 13-1770 Page 2
offenses involving at least a kilogram of heroin. See 21 U.S.C. § 841(b)(1)(A). The court
rejected Lucena’s argument that he satisfied the “safety valve” criteria and thus was
eligible for a sentence below the minimum. See 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2. The
court concluded that Lucena had met four of the five criteria but not the last because he
did not give the government a complete, truthful account of his involvement in
previous drug deals. See U.S.S.G. § 3553(f)(5). At the sentencing hearing Lucena’s
lawyer had insisted that the defendant never before participated in a drug deal for this
supplier, but the court disbelieved that a novice would have been trusted to coordinate
the delivery of a substantial quantity of heroin to the undercover officer.
Lucena filed a notice of appeal, but his appointed attorney asserts that the appeal
is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 744 (1967).
We invited Lucena to comment on counsel’s motion, but he has not responded. 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
advises us that Lucena does not wish to challenge his guilty plea, so counsel’s brief
properly omits discussion about the plea colloquy or the voluntariness of the plea.
See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287
F.3d 667, 671 (7th Cir. 2002).
Counsel first considers whether Lucena could challenge the district court’s
determination that the defendant did not satisfy the criteria for relief under the safety
valve. Lucena had the burden of proving those elements by a preponderance of the
evidence, see United States v. Montes, 381 F.3d 631, 634 (7th Cir. 2004), and we would
review the court’s factual findings for clear error, see United States v. Harrison, 431 F.3d
1007, 1013–14 (7th Cir. 2005). Assertions by defense counsel that Lucena had been
truthful during a debriefing were not enough to satisfy the defendant’s burden, and
counsel did not call Lucena to testify or present other evidence. See United States v.
Chapman, 694 F.3d 908, 914–15 (7th Cir. 2012) (explaining that defense counsel’s
statements are not evidence). In light of the absence of evidence about Lucena’s
truthfulness during his proffer, we agree with counsel that it would be frivolous to
argue that the district court clearly erred. See United States v. Nunez, 627 F.3d 274, 284–85
(7th Cir. 2010); United States v. Ponce, 358 F.3d 466, 468–69 (7th Cir. 2004); Montes, 381
F.3d at 637.
Counsel also considers whether Lucena could challenge the reasonableness of his
prison sentence. But Lucena received the statutory minimum, so a reasonableness
No. 13-1770 Page 3
challenge necessarily would be frivolous. See United States v. Johnson, 580 F.3d 666, 673
(7th Cir. 2009); United States v. Cooper, 461 F.3d 850, 856 (7th Cir. 2006).
The motion to withdraw is GRANTED, and the appeal is DISMISSED.