United States v. Freddy Cazares

NONPRECEDENTIAL DISPOSITION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 June 1, 2011
Decided June 1, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 10-2827
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 08 CR 685-1
FREDDY CAZARES,
Defendant-Appellant. Rebecca R. Pallmeyer,
Judge.
ORDER
Freddy Cazares pleaded guilty to attempting to possess with intent to distribute
cocaine, 21 U.S.C. §§ 841(a)(1), 846, after he tried to buy 25 kilograms from an undercover
informant. The district court sentenced Cazares to 140 months’ imprisonment, within the
guidelines range of 135 to 168 months. Cazares’ appellate counsel has filed a motion to
withdraw under Anders v. California, 386 U.S. 738 (1967), contending that any challenge to
Cazares’ conviction or the reasonableness of his sentence would be frivolous. Cazares has
responded to counsel’s motion, see C IR. R. 51(b). We confine our review to the potential
issues identified in counsel’s facially adequate brief and in Cazares’ response. See United
States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2009).
No. 10-2827 Page 2
Counsel begins by noting that Cazares does not want his guilty plea vacated and
thus correctly forgoes discussing the voluntariness of the plea or the adequacy of the plea
colloquy. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir. 2002).
Counsel considers challenging the reasonableness of Cazares’ sentence, but properly
concludes that any such challenge would be frivolous. Cazares’ within-guidelines sentence
is presumed reasonable, see Rita v. United States, 551 U.S. 338, 350-51 (2007); United States v.
Vallar, 635 F.3d 271, 279 (7th Cir. 2011), and counsel cannot identify any basis to upset that
presumption nor can we. Moreover counsel cannot identify any error in the court’s
consideration of sentencing factors under 18 U.S.C. § 3553(a). The court acknowledged
Cazares’ history and characteristics, § 3553(a)(1), noting the role that his limited cognitive
abilities may have played in his recidivist behavior, and remarking that Cazares had an
opportunity, while residing at a Salvation Army facility, to improve his life and habits. The
court also stressed the seriousness of the offense, § 3553(a)(2)(A), noting in particular that
the 25 kilograms Cazares tried to sell far exceeded the 5-kilogram amount needed to trigger
the 10-year statutory minimum sentence under § 841(b)(1)(A).
In his Rule 51(b) response, Cazares asserts that the district court improperly rejected
his argument at sentencing that he receive a reduced sentence based on his diminished
mental capacity. See U.S.S.G. § 5K2.13. Section 5K2.13 requires a showing that (1) the
defendant committed the offense while suffering from a significantly reduced mental
capacity; and (2) the significantly reduced mental capacity contributed substantially to the
commission of the offense. See United States v. Portman, 599 F.3d 633, 637 (7th Cir. 2010). A
“significantly reduced mental capacity,” though, means an impaired ability to either
understand the wrongfulness of the relevant conduct or to control behavior. U.S.S.G.
§ 5K2.13 cmt. n. 1; United States v. Anderson, 547 F.3d 831, 831-32 (7th Cir. 2008). The district
court acknowledged that Cazares’ “cognitive defects” may have led him to think that drug
dealing was one of the few avenues available to him to make a living, but nothing in the
record shows that he did not understand his culpability for his actions. At sentencing, in
fact, he conceded that his cognitive defects did not “excuse” his behavior. The district court
then properly declined to reduce his sentence on that basis.
Cazares also asserts that he seeks new counsel because of a breakdown in
communications with his lawyer, but he does not explain why we should appoint a
different lawyer to pursue a frivolous appeal.
Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.