United States v. Hernandez-Eslora, Bi

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 7, 2006
Decided December 8, 2006
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-2418
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Western Division
v.
No. 05 CR 50046-1
BILL HERNANDEZ-ESLORA,
Defendant-Appellant. Philip G. Reinhard,
Judge.
ORDER
Bill Hernandez-Eslora was caught with 250 grams of cocaine on the way to a
drug deal with a government informant. After voir dire but before opening
statements at his trial, Hernandez-Eslora pleaded guilty to one count of conspiracy
to distribute cocaine and one count of possession with intent to distribute. See 21
U.S.C. §§ 846, 841(a)(1). After calculating a guidelines imprisonment range of 168
to 210 months, the district court imposed concurrent terms of 192 months plus
three years of supervised release, $200 in special assessments, and a $300 fine.
Appointed counsel filed a notice of appeal but now moves to withdraw because he
cannot discern a nonfrivolous basis for appeal. See Anders v. California, 386 U.S.
738 (1967). We invited Hernandez-Eslora to respond to counsel’s brief, see Cir. R.
51(b), but he has not done so. Counsel’s supporting brief is facially adequate, so we
No. 06-2418 Page 2
limit our review to the potential issues identified by counsel. See United States v.
Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per curiam).
Hernandez-Eslora has given no indication that he wants his guilty pleas set
aside, so counsel appropriately has omitted any discussion of the adequacy of the
plea colloquy or the voluntariness of his pleas. See United States v. Knox, 287 F.3d
667, 670-72 (7th Cir. 2002). And since Hernandez-Eslora agreed with the probation
officer’s guidelines calculations, he has waived any appellate argument about the
resulting imprisonment range. See United States v. Murry, 395 F.3d 712, 717 (7th
Cir. 2005); United States v. Martinez-Jimenez, 294 F.3d 921, 923 (7th Cir. 2002).
Thus counsel considers only whether his 192-month prison terms are unreasonable.
At sentencing Hernandez-Eslora argued for a below-guidelines sentence due
to his poor health. The district court disagreed, finding that Hernandez-Eslora
could receive adequate—if not better—medical treatment in prison. The district
court also noted that Hernandez-Eslora’s illness had not prevented him from
committing crime, and thus could not be expected to deter him in the future.
Counsel rightly concludes that it would be frivolous for Hernandez-Eslora to
argue that his poor health compels a lower sentence. A sentence within the
guidelines range is presumptively reasonable. See United States v. Mykytiuk, 415
F.3d 606, 608 (7th Cir. 2005). The Supreme Court has granted a writ of certiorari
to determine whether that presumption is consistent with United States v. Booker,
543 U.S. 220 (2005). United States v. Rita, No. 05-4674, 2006 WL 1144508 (4th Cir.
May 1, 2006), cert. granted, 75 U.S.L.W. 3246 (U.S. Nov. 3, 2006) (No. 06-5754).
But even without the benefit of the presumption, Hernandez-Eslora’s sentence is
reasonable. The district court meaningfully considered the statutory sentencing
factors and determined that Hernandez-Eslora’s illness did not compel a shorter
sentence because he could be treated in prison. The court also found that his illness
had not—and would not—prevent him from committing crime. See United States v.
Wurzinger, No. 05-3803, 2006 U.S. App. LEXIS 26917 at *11 (7th Cir. Oct. 30,
2006). Counsel is unable to identify any other factors that would have compelled a
lower sentence.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.