NONPRECEDENTIAL DISPOSITION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 July 24, 2013
Decided July26, 2013
Before
RICHARD A. POSNER, Circuit Judge
DANIEL A. MANION, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 11‐3741
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 05 CR 485‐6
JAVIER HERNANDEZ,
Defendant‐Appellant. Harry D. Leinenweber,
Judge.
O R D E R
Javier Hernandez engaged in a conspiracy in which he sold cocaine and crack in
Peoria County, Illinois, between 2000 and June 2005. During the last four months, he also
engaged in a separate conspiracy—the subject of this appeal—selling heroin and cocaine in
Chicago. Hernandez entered guilty pleas for his role in both conspiracies. With regard to the
Peoria‐based conspiracy, he pleaded guilty in the Central District of Illinois to conspiring to
distribute cocaine and crack, see 21 U.S.C. 846, 841(a)(1), and was sentenced to 360 months’
imprisonment. See United States v. Hernandez, 544 F.3d 743 (7th Cir. 2008); United States v.
Hernandez, 395 F. App’x 294 (7th Cir. Sept. 28, 2010). Regarding the Chicago conspiracy, he
shortly thereafter pleaded guilty in the Northern District of Illinois to conspiring to
distribute heroin, distributing cocaine, and possessing with intent to distribute cocaine and
No. 11‐3741 Page 2
heroin, see id. §§ 846, 841(a)(1), and was sentenced to 151 months’ imprisonment—the
bottom of the calculated guidelines range—with 91 of those months to be served
concurrently with the sentence for the prior conviction based on the Peoria conspiracy. He
filed a notice of appeal, but his appointed lawyer believes that the appeal is frivolous and
seeks to withdraw under Anders v. California, 386 U.S. 738, 744 (1967). Hernandez has not
accepted our invitation to comment on counsel’s motion. See CIR. R. 51(b). We confine our
review to the potential issues identified in counsel’s facially adequate brief. United States v.
Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
Counsel first notes that Hernandez does not want to challenge his guilty plea, and
thus counsel properly refrains from 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, 671 (7th Cir. 2002).
Counsel considers whether Hernandez could argue that the district court erred by
rejecting his contention that his prior conviction should not count towards his criminal
history score (category IV) because that conviction was based on the “same general activity”
as this case. It is true that prior conduct may not be “double counted”—first as relevant
conduct increasing the defendant’s total offense level, and again as relevant criminal history
that places the defendant in a higher criminal history category, see U.S.S.G. §§ 4A1.1,
4A1.2(a)(1) & cmt. n.1; United States v. Nance, 611 F.3d 409, 412–13 (7th Cir. 2010)—but the
applicable guideline defines relevant conduct as the same transaction or occurrence. See
U.S.S.G. § 1B1.3. There was “no link whatsoever” between the Peoria and Chicago cases,
according to the investigating FBI agent, and Hernandez offered nothing in rebuttal beyond
his counsel’s bare assertion at sentencing that the two cases constituted the “same general
activity.” We thus agree with counsel that it would be frivolous to challenge the court’s
calculation of his criminal history score.
Finally counsel concludes, and we agree, that a challenge to the reasonableness of
Hernandez’s prison sentence would be frivolous. As counsel notes, we would presume that
the within‐guidelines sentence is reasonable, see Rita v. United States, 551 U.S. 338, 350–51
(2007); United States v. Klug, 670 F.3d 797, 800 (7th Cir. 2012), and counsel does not identify
any reason to disturb that presumption. Though the district judge did not specifically recite
the factors in 18 U.S.C. § 3553(a), his statements in context at sentencing reflect that he did
consider them. See United States v. Abebe, 651 F.3d 653, 656 (7th Cir. 2011) (citation omitted).
After the parties debated whether the sentence should be consecutive to or concurrent with
the prior sentence, the judge agreed with Hernandez that it would be “Draconian” to “put[]
him away until he’s 80 years old.” The court concluded, however, that a partially
consecutive sentence was necessary to provide just punishment, noting that “there must be
some punishment for this particular case” and that such a sentence would be consistent
No. 11‐3741 Page 3
with those imposed on Hernandez’s codefendants. No rational person could conclude that
the court abused its discretion in making that assessment.
The motion to withdraw is GRANTED, and the appeal is DISMISSED.