NONPRECEDENTIAL DISPOSITION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 June 4, 2014
Decided June 9, 2014
Before
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 13-3584 Appeal from the
United States District Court for the
UNITED STATES OF AMERICA, Northern District of Illinois,
Plaintiff-Appellee, Eastern Division.
v. No. 12 CR 479-1
ROBERTO A. AGUILAR-PATINO, Ronald A. Guzmán,
Defendant-Appellant. Judge.
ORDER
Roberto Aguilar-Patino, a citizen of Mexico, was brought illegally to the United
States by his parents in 1978 when he was 4 years old, but in 1990 at age 17 he adjusted
his status to lawful permanent resident. Five years later he pleaded guilty to two counts
of aggravated discharge of a firearm, see 720 ILL. COMP. STAT. 5/24-1.2(a)(1), (a)(2), and
the Illinois circuit court imposed concurrent terms of 4 years’ imprisonment.
Aguilar-Patino was paroled in 1996—after serving only one year of his sentence—and
the former Immigration and Naturalization Service promptly removed him from the
United States. Within two years, however, Aguilar-Patino snuck into the country.
No. 13-3584 Page 2
Authorities found him in Illinois in June 2012, and Aguilar-Patino pleaded guilty to
unlawful presence after removal, 8 U.S.C. § 1326(a).
The district court calculated a total offense level of 21, which includes a 16-level
upward adjustment because Aguilar-Patino had been removed from the United States
following conviction for a felony firearms offense. See U.S.S.G. § 2L1.2(b)(1)(A)(iii). With
his criminal history category of IV, he faced a guidelines imprisonment range of 57 to 71
months. Aguilar-Patino did not object to the court’s guidelines calculations. Instead, he
pressed for a below-range sentence of 24 months. Aguilar-Patino argued that the
16-level increase is excessive because it rests on conduct for which he already had been
punished through incarceration and, on his view, removal. After weighing the factors in
18 U.S.C. § 3553(a), the district court concluded that a below-guidelines sentence was
appropriate (although not the “extraordinary sentence” of 24 months advocated by
Aguilar-Patino) and imposed a 44-month term.
Aguilar-Patino has filed a notice of appeal, but his appointed lawyer asserts that
the appeal is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738,
744 (1967). Counsel has submitted a brief that explains the nature of the case and
addresses the issues that this kind of appeal might be expected to involve. We invited
Aguilar-Patino to comment on counsel’s motion, but he has not responded. See 7TH CIR.
R. 51(b). Because the analysis in the brief appears to be thorough, we limit our review to
the subjects that counsel has discussed. See United States v. Bey, No. 13-1163, 2014 WL
1389090, at *2 (7th Cir. Apr. 10, 2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir.
1996). Moreover, counsel has determined that Aguilar-Patino does not want his guilty
plea set aside, and thus the lawyer appropriately omits discussion about the adequacy
of the plea colloquy and the voluntariness of the plea. See United States v. Knox, 287 F.3d
667, 671–72 (7th Cir. 2002).
Counsel first considers whether Aguilar-Patino could contest the 16-level
upward adjustment under § 2L1.2(b)(1)(A)(iii) and correctly concludes that any
challenge—which we would review for plain error—would be frivolous.
Aguilar-Patino’s state convictions are for firearms offenses if his conduct would have
violated 18 U.S.C. § 924(c), which punishes using a firearm during a crime of violence.
See U.S.S.G. § 2L1.2 cmt. n.1(B)(v). A crime of violence under § 924(c) encompasses a
felony that “has as an element the use, attempted use, or threatened use of physical
force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). We concluded
in United States v. Curtis, 645 F.3d 937 (7th Cir. 2011), that aggravated discharge of a
firearm in violation of 720 ILL. COMP. STAT. 5/24-1.2 “is unquestionably the use,
No. 13-3584 Page 3
attempted use, or threatened use of physical force against the person of another” for the
purposes of the career offender guideline, 645 F.3d at 941 (internal citation and
quotation marks omitted); see also Quezada-Luna v. Gonzales, 439 F.3d 403, 406 (7th Cir.
2006) (upholding BIA’s conclusion that aggravated discharge of firearm is crime of
violence under 18 U.S.C. § 16, which carries same definition as § 924(c)). Because it
“would be inappropriate to treat identical texts differently just because of a different
caption,” United States v. Templeton, 543 F.3d 378, 380 (7th Cir. 2008), it would be
frivolous to argue that aggravated discharge of a firearm is not a crime of violence
under § 924(c).
Counsel next questions whether Aguilar-Patino could argue that the government
was required to prove beyond a reasonable doubt his convictions for aggravated
discharge of a firearm. But as counsel correctly points out, the fact of a prior conviction
need not be proven beyond a reasonable doubt, see Apprendi v. New Jersey, 530 U.S. 466,
490 (2000); Almendarez-Torres v. United States, 523 U.S. 224, 226–27 (1998); Julian v.
Bartley, 495 F.3d 487, 496–97 (7th Cir. 2007); United States v. Peters, 462 F.3d 716, 718 (7th
Cir. 2006), and so an appellate challenge based on that ground would be frivolous.
Lastly, counsel explores whether Aguilar-Patino could challenge the
reasonableness of his prison sentence. But his below-guidelines sentence is presumed
reasonable, see Rita v. United States, 551 U.S. 338, 347 (2007); United States v. Long,
748 F.3d 322, 332 (7th Cir. 2014); United States v. Banas, 712 F.3d 1006, 1011 (7th Cir.
2013), and counsel has not identified any basis to disturb that presumption. Indeed, the
district court considered Aguilar-Patino’s near lifelong residence in the United States
and letters from relatives attesting to his devotion to his family versus the seriousness of
the firearms offenses he committed before his removal, the number of crimes he has
committed since returning, and the strong motive Aguilar-Patino has to return again
illegally to be reunited with his family. See 18 U.S.C. § 3553(a)(1), (a)(2), (a)(5).
The motion to withdraw is GRANTED, and the appeal is DISMISSED.