United States of America v. Jose Hernandez-Avila

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 15, 2013
Decided March 18, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 12‐3541
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JOSE HERNANDEZ‐AVILA,
Defendant‐Appellant.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 12‐CR‐00008
Charles N. Clevert, Jr.,
Judge.
O R D E R
Jose Avila, a Mexican citizen, was removed from the United States in 2003 after
serving a sentence in Illinois for unlawful delivery of cocaine. See 720 ILCS 570/401(c)(2). He
returned, however, in 2010 and was arrested in Wisconsin. Based on a charge dating back to
1993, Avila was convicted in the Kenosha County Circuit Court of unlawful delivery of
cocaine, see W IS. STAT . § 961.41(1)(cm), and sentenced to five years’ imprisonment. In 2012
he was charged in the Eastern District of Wisconsin with unlawful presence in the United
States after removal. See 8 U.S.C. § 1326(a). Avila pleaded guilty and was sentenced to 36
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 12‐3541 Page 2
months’ imprisonment (to run concurrent with the remaining 18 months of his state
sentence). Avila has filed a notice of appeal, but his appointed lawyer asserts that the
possible appellate claims are frivolous and seeks to withdraw under Anders v. California, 386
U.S. 738, 744 (1967). Avila has not responded to counselʹs motion. See CIR. R. 51(b). We
confine our review to the potential issues identified in counselʹs facially adequate brief.
See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
Avila has told counsel that he does not want his guilty plea set aside, so counsel
properly forgoes discussing the adequacy of the plea colloquy or the voluntariness of the
plea. See United States v. Knox, 287 F.3d 667, 670–672 (7th Cir. 2002).
Counsel first evaluates whether Avila could argue that the district court erred by
disregarding his objection at sentencing to the 16‐level increase he received under U.S.S.G.
§ 2L1.2(b)(1)(A)(i), based on his 2001 conviction for delivery of cocaine. At sentencing
counsel argued that the Sentencing Commission promulgated the guideline without
adequate deliberation or empirical research. As counsel acknowledges, however, a district
court need not comment on stock arguments of this sort. See United States v. Aguilar‐Huerta,
576 F.3d 365, 367–68 (7th Cir. 2009) (addressing application of U.S.S.G. § 2L1.2(b)(1)(A)(ii)).
Counsel also considers whether Avila could challenge his prison sentence as
unreasonable. But as counsel rightly indicates, Avila’s 36‐month sentence is below the
guidelines range (57 to 71 months) and thus presumptively reasonable. See Rita v. United
States, 551 U.S. 338, 347 (2007); United States v. Jones, 696 F.3d 695, 699 (7th Cir. 2012); United
States v. Liddell, 543 F.3d 877, 885 (7th Cir. 2008). Counsel has not identified any ground to
rebut this presumption, nor can we. The court evaluated the factors listed in 18 U.S.C.
§ 3553(a), including Avila’s history and characteristics (his addiction to drugs and multiple
convictions for drug dealing), as well as the need to deter Avila from reentering the United
States (especially considering his prior conviction for unlawful reentry). These
considerations, the court appropriately decided, outweighed Avila’s request for an even
lower sentence to account for family ties being the principal motivation for his return.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.

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