United States of America v. Godofredo Macapugay

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 12, 2009
Decided August 12, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 08‐4114
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
GODOFREDO MACAPUGAY,
Defendant‐Appellant.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 08‐CR‐55‐C‐01
Barbara B. Crabb,
Chief Judge.
O R D E R
Godofredo Macapugay underreported his income to the IRS for four consecutive
years, but the government eventually caught on and in 2008 charged him with four counts
of filing false tax returns. See 26 U.S.C. § 7206(1). Macapugay pleaded guilty to one count,
and the district court sentenced him to a prison term of 12 months plus one day.
Macapugay appeals, but his appointed counsel now seeks to withdraw under Anders v.
California, 386 U.S. 738 (1967), because he cannot discern a nonfrivolous issue to pursue.
Macapugay did not respond to our invitation to comment on counsel’s motion. See CIR.
R. 51(b). We review only the potential issues identified in counsel’s facially adequate brief.
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NONPRECEDENTIAL DISPOSITION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. A PP. P. 32.1

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No. 08‐4114 Page 2
Counsel first considers whether Macapugay could challenge the voluntariness of his
guilty plea or the adequacy of the plea colloquy, but counsel gives no indication that
Macapugay even wants his guilty plea set aside, so counsel should have omitted this
discussion. See United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002).
Next, counsel examines whether Macapugay could challenge the reasonableness of
his prison sentence. In his written plea agreement, Macapugay stipulated that the total tax
loss to the IRS for purposes of the guidelines calculation was $110,067, making his base
offense level 13 after a three‐level reduction for acceptance of responsibility. See U.S.S.G.
§§ 2T4.1, 3E1.1. This, combined with a criminal history category of I, yielded a guidelines
range of 12 to 18 months’ imprisonment. The district court sentenced Macapugay to one
day more than the low end of that range, ostensibly to ensure that he would be eligible for
good‐time credit under 18 U.S.C. § 3624(b). This sentence, within the properly calculated
guidelines range, is presumptively reasonable. See Rita v. United States, 551 U.S. 338, 347
(2007); United States v. Harvey, 516 F.3d 553, 556 (7th Cir. 2008). Moreover, the district court
arrived at the sentence after weighing the appropriate factors under 18 U.S.C. § 3553(a),
including Macapugay’s close familial ties, his good standing in the community as the owner
of a small business (the same business, ironically, for which he consistently failed to report
income), and the likelihood that he will be placed in deportation proceedings upon his
release from prison. We therefore agree with counsel that any challenge to the
reasonableness of Macapugay’s sentence would be frivolous.
Finally, we agree with counsel—who also represented Macapugay before the district
court—that if Macapugay wishes to raise a claim of ineffective assistance, he should do so in
a collateral proceeding under 28 U.S.C. § 2255. See Massaro v. United States, 538 U.S. 500,
504‐05 (2003); United States v. Rezin, 322 F.3d 443, 445 (7th Cir. 2003).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.

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