United States of America v. Frediando Ortiz Contreras

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 13, 2008
Decided December 4, 2008
Before
DANIEL A. MANION, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 07‐4014
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
FREDIANDO ORTIZ CONTRERAS,
Defendant‐Appellant.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 3:06‐CR‐30083‐003‐MJR
Michael J. Reagan,
Judge.
O R D E R
Frediando Contreras pleaded guilty to conspiracy to possess with intent to distribute
marijuana and heroin. See 21 U.S.C. §§ 846, 841(a)(1). The district court sentenced him to
210 months’ imprisonment, the low end of the guidelines range. Contreras filed a notice of
appeal, but his appointed counsel represents that the case is frivolous and seeks leave to
withdraw under Anders v. California, 386 U.S. 738, 744 (1967). Contreras has not accepted
our invitation to comment on counsel’s brief. See CIR. R. 51(b). Our review is limited 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). We conclude that the appeal is frivolous and thus grant
counsel’s motion to withdraw and dismiss this appeal.
Counsel states that Contreras does not want his guilty plea set aside, and so counsel
correctly bypasses discussion of potential issues concerning the voluntariness of Contreras’s
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 07‐4014 Page 2
plea or the adequacy of the plea colloquy. See United States v. Knox, 287 F.3d 667, 670‐71 (7th
Cir. 2002). The only potential issues counsel considers are whether the four‐level increase to
Contreras’s offense level for his leadership role in the drug conspiracy was proper and
whether his sentence is reasonable.
In the presentence investigation report, the probation officer concluded that
Contreras was the leader of a distribution conspiracy that involved five or more
participants. Using the 2006 version of the sentencing guidelines, the probation officer set a
base offense level of 36, see U.S.S.G. § 2D1.1(c)(2), added four levels for Contreras’s
leadership role, see id. § 3B1.1(a), and subtracted three levels for acceptance of responsibility,
see id. § 3E1.1(a) and (b). Contreras has no prior convictions, resulting in a criminal history
category of I. Based on the total offense level of 37 and criminal history category of I, the
guidelines range for imprisonment was 210 to 262 months.
At sentencing Contreras agreed that there were five or more participants but
objected to the conclusion that he was an organizer or leader of the conspiracy. We agree
with counsel that any challenge to the four‐level increase for Contreras’s leadership role
would be frivolous. The district court’s assignment of a four‐level increase for a leadership
role under § 3B1.1(a) is a factual question reviewed for clear error. See United States v. Millet,
510 F.3d 668, 679 (7th Cir. 2007). Contreras’s main argument against the four‐level increase
was that codefendant Penny Hemphill was the real leader of the drug conspiracy and that
he was just “an employee.” But, as the district court found, Contreras received the lion’s
share of the proceeds from the criminal activity, had decision‐making authority over the
transportation of the drugs, recruited a second driver for a particularly large drug load, and
controlled the distribution of money received from drug deliveries. See U.S.S.G. § 3B1.1
cmt. n.4; United States v. Blaylock, 413 F.3d 616, 621 (7th Cir. 2005). Moreover, it is of no
consequence that Hemphill received a lower sentence. See United States v. Gammicchia, 498
F.3d 467, 469 (7th Cir. 2007) (“Nothing is more common than for codefendants to receive
different sentences.”); United States v. Simpson, 337 F.3d 905, 909 (7th Cir. 2003) (explaining
that codefendant’s unjustifiably lenient sentence does not provide a basis to challenge
sentence otherwise correctly calculated under the guidelines). Thus, any argument about
the four‐level increase would be frivolous.
Counsel also evaluates whether Contreras could challenge his 210‐month prison
sentence as unreasonable. A sentence within a correctly calculated guidelines range is
presumptively reasonable. Rita v. United States, 127 S. Ct. 2456, 2462 (2007); United States v.
Harvey, 516 F.3d 553, 556 (7th Cir. 2008). Here the district court gave meaningful
consideration to the factors enumerated in 18 U.S.C. § 3553(a) and found that a sentence at
the lowest end of the guidelines range was appropriate. Specifically, the court considered
the large amount of heroin involved, the scope of the drug conspiracy, the fact that

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No. 07‐4014 Page 3
Contreras had no criminal history prior to this case, and his leadership role in the offense.
Therefore, counsel correctly concludes that any argument challenging the reasonableness of
Contreras’s sentence would be frivolous.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.

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