United States of America v. Jose Andrade-Moreno

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 25, 2007
Decided July 26, 2007
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 06-1375
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE ANDRADE-MORENO,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of
Illinois
No. 3:04CR30071-006-GPM
G. Patrick Murphy,
Chief Judge.
O R D E R
Jose Andrade-Moreno pleaded guilty to conspiring to distribute marijuana.
See 21 U.S.C. § 841(a)(1). The drug amount exceeded 1000 kilograms and Andrade-
Moreno already had a prior conviction for a felony drug offense, so the district court
sentenced him to the statutory minimum of 120 months. See 21 U.S.C.
§ 841(b)(1)(B). Andrade-Moreno appeals, but his attorney moves to withdraw under
Anders v. California, 386 U.S. 738 (1967), because he cannot discern any
nonfrivolous ground for appeal. We invited Andrade-Moreno to respond to counsel’s
motion, see Cir. R. 51(b), but he has not done so. Our review is limited to the points
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 06-1375 Page 2
discussed in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d
968, 973–74 (7th Cir. 2002).
In his supporting brief, counsel considers only whether Andrade-Moreno
might argue under Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v.
Washington, 542 U.S. 296 (2004), that the district court was not authorized to
impose the statutory minimum without first requiring the government to prove his
prior conviction beyond a reasonable doubt. But it is well-established that a district
court may make factual findings at sentencing concerning a defendant’s criminal
history that subject him to an increased penalty, and those facts need not be
admitted or proved to a jury beyond a reasonable doubt. See Almendarez-Torres v.
United States, 523 U.S. 224 (1998); United States v. Williams, 410 F.3d 397, 401-02
(7th Cir. 2005). Apprendi and Blakely left the holding in Almendarez-Torres
undisturbed and, in any event, neither case is implicated when, as here, the
sentence imposed does not exceed the statutory maximum. See Harris v. United
States, 536 U.S. 545, 566-67 (2002); Williams, 410 F.3d at 402. We thus agree with
counsel that it would be frivolous to argue that the district court improperly
sentenced Andrade-Moreno to the statutory minimum term of imprisonment.
Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is
DISMISSED.

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