United States of America v. Noel Basaldua-Lopez

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 22, 2010
Decided July 22, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD A. POSNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 10‐1719
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
NOEL BASALDUA‐LOPEZ,
Defendant‐Appellant.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 4:09CR40064‐001‐GPM
G. Patrick Murphy,
Judge.
O R D E R
While serving a federal sentence for unlawfully entering the United States, Noel
Basaldua‐Lopez attacked another inmate with a razor blade and later pleaded guilty to
assault with a dangerous weapon, 18 U.S.C. § 113(a)(3), and possession of contraband as a
federal inmate, id. § 1791(a)(2). The district court sentenced him at the top of the guidelines
range to an additional 71 months’ imprisonment, and Basaldua‐Lopez instructed his
attorney to appeal his sentence. See United States v. Knox, 287 F.3d 667, 670‐71 (7th Cir.
2002). His attorney, however, can find no reason to challenge the within‐guidelines
sentence and seeks permission to withdraw. See Anders v. California, 386 U.S. 738 (1967).
Basaldua‐Lopez, on the other hand, asserts that his sentence is unfairly high. See CIR. R.
51(b). We review only the issues identified by Basaldua‐Lopez and his attorney in their
submissions. See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

-- 1 of 3 --

No. 10‐1719 Page 2
Counsel first considers whether Basaldua‐Lopez could challenge the guidelines
calculations but concludes that the district court made no error. Basaldua‐Lopez could not
challenge the four‐level increase for use of a dangerous weapon, U.S.S.G. § 2A2.2(b)(2)(B),
because he admitted using a razor blade in the attack, and a razor blade is capable of
inflicting serious bodily injury, see id. § 1B1.1 cmt. n.1(D). Nor could he challenge the three‐
level increase applicable if the victim sustained bodily injury, id. § 2A2.2(b)(3)(A), because
the victim required medical attention to stitch the wound, id. § 1B1.1 cmt. n.1(B). With a
three‐level decrease for acceptance of responsibility, id. § 3E1.1, Basaldua‐Lopez’s final
offense level was properly calculated at 18. A challenge to Basaldua‐Lopez’s criminal
history category would also be frivolous because his 20 criminal history points placed him
well above the 13 points needed to qualify for criminal history category VI, the highest
category. Accordingly, the district court relied on a properly calculated advisory range of
57 to 71 months’ imprisonment.
Next, counsel notes that Basaldua‐Lopez’s within‐guidelines sentence would be
presumed substantively reasonable on appeal, Rita v. United States, 551 U.S. 338, 347 (2007);
United States v. Turner, 604 F.3d 381, 385 (7th Cir. 2010), and considers whether the district
court’s failure to address some of his asserted mitigating factors during the analysis of the
statutory sentencing factors could overcome that presumption, see 18 U.S.C. § 3553(a);
United States v. Coopman, 602 F.3d 814, 818‐19 (7th Cir. 2010); United States v. Singleton, 588
F.3d 497, 500‐01 (7th Cir. 2009). The court addressed all but three of the mitigating
arguments Basaldua‐Lopez raised in his sentencing memorandum: the lack of parental
guidance he had growing up, his struggle with substance abuse, and the effect his status as
a deportable alien might have on his eligibility to receive good‐time credits or participate in
certain prison programs. But the court had discretion to address explicitly only Basaldua‐
Lopez’s principal arguments, see United States v. Young, 590 F.3d 467, 474 (7th Cir. 2009), and
Basaldua‐Lopez did not even mention at sentencing the issues of substance abuse or good‐
time credits. As for Basaldua‐Lopez’s childhood, at sentencing he suggested that his lack of
guidance somehow excused his criminal behavior. But the court’s emphasis in its ruling on
the brutal nature of the unexplained attack and Basaldua‐Lopez’s extensive criminal history
(by age 28 Basaldua‐Lopez had earned 20 criminal history points—7 more than the
minimum to qualify him for the highest criminal history category) underscores an
understandable unwillingness to countenance excuses of the sort he offered. See United
States v. Portman, 599 F.3d 633, 636‐37 (7th Cir. 2010). (“[The district court] must provide
enough explanation so that someone familiar with the case would understand why the
court rejected the argument.”).
Basaldua‐Lopez asserts in his submission that the district court improperly based his
high‐end sentence on speculation that he was likely to return to the United States after

-- 2 of 3 --

No. 10‐1719 Page 3
deportation. This, however, was an appropriate consideration—a district court is entitled to
weigh a defendant’s likelihood to commit other crimes upon release. See 18 U.S.C.
§ 3553(a)(2)(B), (C); United States v. Miranda, 505 F.3d 785, 793 (7th Cir. 2007); see also
U.S.S.G. § 4A1.3. Basaldua‐Lopez, having already been deported from the United States, is
prohibited from entering the United States again without permission and would face
criminal penalties if caught. 8 U.S.C. §§ 1182(a)(9), 1325. Given that he has been deported
(or removed) at least six times already, it was reasonable for the district court to fashion the
sentence with the hopes of deterring him from committing another crime or at least
incapacitating him longer to forestall another attempt.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

-- 3 of 3 --