United States of America v. Raul Palacios-De Paz

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 22, 2016
Decided July 22, 2016
Before
DIANE P. WOOD, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 16‐1080
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
RAUL PALACIOS‐DE PAZ,
Defendant‐Appellant.
Appeal from the United States District
Court for the Southern District of Indiana,
Indianapolis Division.
No. 1:15‐cr‐00037‐SEB‐DML‐1
Sarah Evans Barker,
Judge.
O R D E R
Raul Palacios‐De Paz, a Mexican citizen, pleaded guilty to being found in the
United States without permission of the Attorney General after having been removed
following conviction for commission of an aggravated felony. See 8 U.S.C. § 1326(a). The
district court sentenced him to 46 months’ imprisonment, the bottom of his calculated
guidelines range, revoked his supervised release imposed for his aggravated felony, and
tacked on 10 months’ imprisonment to run concurrently with the 46‐month sentence.
Palacios‐De Paz filed a notice of appeal from the new conviction, but his appointed
attorney has concluded that the appeal is frivolous and moves to withdraw under Anders
v. California, 386 U.S. 738, 744 (1967). Palacios‐De Paz opposes counsel’s motion.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 16‐1080 Page 2
See C IR . R. 51(b). Counsel has submitted a brief that explains the nature of the case and
addresses the issues that an appeal of this kind might be expected to involve. Because
the analysis in counsel’s brief appears to be thorough, we limit our review to the subjects
that counsel has discussed, plus the additional issues that Palacios‐De Paz, disagreeing
with counsel, believes have merit. See United States v. Bey, 748 F.3d 774, 776 (7th Cir.
2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
Counsel tells us that Palacios‐De Paz does not wish to challenge his guilty plea,
and thus counsel appropriately forgoes discussing the voluntariness of the plea or the
adequacy of the plea colloquy. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir.
2012); United States v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002). Counsel also advises that
she reviewed the district court’s application of the sentencing guidelines and cannot
identify any potential claim of error.
Counsel considers whether Palacios‐De Paz could argue that the district court
failed to address adequately his mitigating circumstance that he had reentered the
United States to reunite with his teenage daughter. But any possible claim along these
lines has been waived because trial counsel, when asked by the judge if any sentencing
argument remained unaddressed, said no. See United States v. Cruz, 787 F.3d 849, 850
(7th Cir. 2015); United States v. Donelli, 747 F.3d 936, 940–41 (7th Cir. 2014).
Counsel next considers whether Palacios‐De Paz could challenge his prison term
as unreasonable, but properly concludes that such a challenge would be frivolous.
Palacio‐De Pazʹs 46–month sentence is within the guidelines range of 46 to 57 months
(based on a total offense level of 21 and criminal history category of V) and thus is
presumptively reasonable. See Rita v. United States, 551 U.S. 338, 347 (2007); United States
v. Fletcher, 763 F.3d 711, 715 (7th Cir. 2014). Counsel has not identified anything in the
record rebutting that presumption, nor can we. The district court considered the
sentencing factors in 18 U.S.C. § 3553(a), including the need to promote respect for the
law given Palacio‐De Paz’s willful disregard of the federal statute barring his return to
the United States. The court balanced Palacio‐De Pazʹs history of criminal conduct and
drug abuse against his recent efforts to be a presence in his daughter’s life. Moreover, the
court considered the need for incapacitation and specific deterrence for Palacios‐De Paz
who had reentered the United States illegally only eight months after having been
removed.
In his Rule 51(b) response, Palacios‐De Paz suggests that his trial counsel’s
performance has been deficient. Any claim of ineffective assistance, however, is best
reserved for collateral review where a record can be developed. See Massaro v.

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No. 16‐1080 Page 3
United States, 538 U.S. 500, 504–05 (2003); United States v. Harris, 394 F.3d 543, 557–58
(7th Cir. 2005).
Palacios‐De Paz also asks that we appoint substitute counsel, but the point of
Anders is that a defendant has no right to appointed counsel where an appeal is deemed
frivolous. See United States v. Eggen, 984 F.2d 848, 850 (7th Cir. 1993).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.
Palacios‐De Paz’s motion for appointment of substitute counsel is DENIED.

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