NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 23, 2011
Decided March 23, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 10‐3129
Appeal from the
UNITED STATES OF AMERICA, United States District Court for the
Plaintiff‐Appellee, Western District of Wisconsin.
v. No. 10‐CR‐73‐BBC‐02
JAVIER P. CABRERA, Barbara B. Crabb,
Defendant‐Appellant. Judge.
O R D E R
Javier Cabrera pleaded guilty to distributing more than 500 grams of cocaine, see
21 U.S.C. § 841(a)(1), and the district court sentenced him to the statutory minimum of
60 months’ imprisonment. See id. § 841(b)(1)(B)(ii). Cabrera appeals, but his appointed
lawyer seeks to withdraw because he cannot identify a nonfrivolous issue for appeal. Anders
v. California, 386 U.S. 738, 744 (1967). Cabrera has not responded to counsel’s motion, see CIR.
R. 51(b), and we confine our review to the potential issues identified in counsel’s facially
adequate brief, see United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
Cabrera has not expressed a desire to set aside his guilty plea. Thus, counsel should
No. 10‐3129 Page 2
have omitted from his submission any discussion of the adequacy of the plea colloquy and
the voluntariness of the guilty plea. See United States v. Knox, 287 F.3d 667, 671‐72 (7th Cir.
2002).
Counsel considers whether Cabrera could argue that he should not have received
criminal‐history points for two charges that the State of Wisconsin dismissed through its
deferred‐prosecution program. To enter that program, Cabrera was required to plead guilty
to the charges, and once he fulfilled the program’s requirements, the State dismissed both
charges. The district court assessed two points for those charges, however, because in both
cases Cabrera admitted his guilt. See U.S.S.G. § 4A1.2(f). Cabrera objected to the assessment
because, he argued, his guilty pleas were considered withdrawn after the State dismissed
the charges against him. See WIS. STAT. § 971.37(4). But U.S.S.G. § 4A1.2(f) states that such
diversionary dispositions count as prior sentences if they result from an admission of guilt,
even if a conviction is not formally entered. Because Cabrera pleaded guilty to both charges
as part of the deferred‐prosecution program, the court correctly assessed two criminal‐
history points for the charges. See United States v. Jones, 448 F.3d 958, 960‐61 (7th Cir. 2006).
Counsel also questions whether Cabrera could argue that his prison sentence is
unreasonable. But the district court properly calculated the guidelines range and adequately
considered the sentencing factors listed in 18 U.S.C. § 3553(a) before sentencing Cabrera to
the statutory minimum of 60 months. The court acknowledged Cabrera’s argument that he
has six children to support but emphasized that he had provided that support through the
sale of drugs. Cabrera’s within‐guidelines sentence is presumed reasonable, and counsel
does not identify a reason to disturb that presumption. See Rita v. United States, 551 U.S. 338,
347 (2007). Moreover, the court was not authorized to sentence Cabrera below the statutory
minimum. See United States v. Clark, 538 F.3d 803, 809 (7th Cir. 2008); United States v.
Roberson, 474 F.3d 432, 436‐37 (7th Cir. 2007). Thus, we agree with counsel that it would be
frivolous to challenge Cabrera’s sentence.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS Cabrera’s
appeal.