NONPRECEDENTIAL DISPOSITION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 February 1, 2007
Decided February 1, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 06-1698
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division
v.
No. 03 CR 274
JOSE REYES-HURTADO,
Defendant-Appellant. James B. Zagel,
Judge.
ORDER
Jose Reyes-Hurtado pleaded guilty to being in the United States without
permission after his removal to Mexico on two separate occasions following
convictions for sale of a controlled substance and robbery, respectively, both
aggravated felonies. See 8 U.S.C. § 1326(a). The district court calculated a
guidelines range of 70 to 87 months’ imprisonment, and sentenced Reyes-Hurtado
to 72 months. Reyes-Hurtado appeals, but his appointed attorney moves to
withdraw under Anders v. California, 386 U.S. 738 (1967), because he cannot
discern any nonfrivolous grounds for appeal. We invited Reyes-Hurtado to respond
to counsel’s motion, see Cir. R. 51(b), but he has not done so. Our review is limited
No. 06-1698 Page 2
to the points discussed in counsel’s facially adequate brief. See United States v.
Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
Counsel identifies four possible grounds for appeal. First, counsel has
considered whether Reyes-Hurtado could argue that his guilty plea was not
knowing and voluntary and therefore should be set aside. But, as counsel notes,
Reyes-Hurtado does not wish to have his plea vacated, and thus we need not
consider this potential argument. See United States v. Knox, 287 F.3d 667, 671 (7th
Cir. 2002).
Counsel next considers whether Reyes-Hurtado might argue that the district
court erred in finding that he was mentally competent to understand the nature of
the proceedings and assist counsel in his defense. We agree with counsel that this
argument would be frivolous. The district court’s determination that Reyes-
Hurtado was competent could not be set aside unless it is clearly erroneous. United
States v. Jones, 87 F.3d 954, 955 (7th Cir. 1996). A defendant is competent if he
possesses both a “sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding” and a “rational as well as factual
understanding of the proceedings against him.” Dusky v. United States, 362 U.S.
402, 402 (1960); see Woods v. McBride, 430 F.3d 813, 817 (7th Cir. 2005). Early in
the proceedings, the court ordered a psychological examination, after which a
psychiatrist and psychologist diagnosed Reyes-Hurtado with alcohol dependence,
adjustment disorder with depressed mood, and adult antisocial behavior, but
concluded that primarily he was malingering and was competent to stand trial. The
court had the opportunity to observe Reyes-Hurtado and test his capacity to
understand the proceedings during the plea colloquy and at sentencing. His
behavior and coherent responses to the court’s questioning show no indication of a
lack of competency. Moreover, counsel for Reyes-Hurtado did not object to the
conclusions in the psychological evaluation nor did he request that a competency
hearing be held, further supporting the finding that Reyes-Hurtado was competent.
See United States v. Downs, 123 F.3d 637, 641 (7th Cir. 1997) (counsel’s silence
provides substantial evidence of competence because counsel is in position to assess
defendant’s ability to understand and assist in the proceedings).
Counsel next evaluates whether Reyes-Hurtado might argue that his prison
sentence was improperly calculated. As we understand the specific contentions,
Reyes-Hurtado wishes to argue that the district court erroneously increased his
sentence beyond the default two-year statutory maximum that applies to violations
of § 1326(a); Reyes-Hurtado would have counsel argue that the 20-year, enhanced
maximum provided for in § 1326(b) could not apply because his prior convictions
were not alleged in the indictment or proven to a jury beyond a reasonable doubt.
But as counsel correctly notes, the Supreme Court has rejected this very contention.
No. 06-1698 Page 3
See Almendarez-Torres v. United States, 523 U.S. 224, 243–45 (1998); United States
v. Lechuga-Ponce, 407 F.3d 895, 896–97 (7th Cir. 2005).
Finally, counsel evaluates whether Reyes-Hurtado might argue that his
sentence is unreasonable under United States v. Booker, 543 U.S. 220 (2005),
because the district court denied his request for a lower sentence to account for the
absence in the district of a “fast-track” program for early disposition of § 1326(a)
prosecutions. See generally, Prosecutorial Remedies and Tools Against the
Exploitation of Children Today Act of 2003, Pub. L. No. 108-21, 117 Stat. 650, 675
(2003). But as counsel recognizes, a district court cannot reduce a § 1326(a)
sentence to compensate for the absence of a fast-track program. As we have
explained, a sentence is not unreasonable merely because it was imposed in a
district that does not have a fast-track program. See United States v. Rodriguez-
Rodriguez, 453 F.3d 458, 462–63 (7th Cir. 2006); United States v. Martinez-
Martinez, 442 F.3d 539, 542–43 (7th Cir. 2006). Moreover, even if a fast-track
program was in place in the district, Reyes-Hurtado, who rejected the government’s
proposed plea agreement, took no step toward making himself eligible, so he draws
“a false equivalence between (on the one hand) defendants in fast-track
jurisdictions who receive a benefit in exchange for the acceptance of certain
detriments, and (on the other hand) a defendant in [his] position, who claims the
benefit without suffering the detriment.” United States v. Mejia, 461 F.3d 158, 162
(2d Cir. 2006); see United States v. Martinez-Flores, 428 F.3d 22, 25–26 (1st Cir.
2005) (explaining that authorized fast-track programs require defendant to
stipulate to the factual basis underlying his guilty plea, and waive rights to file
pretrial motions, direct appeal, and postjudgment collateral attacks). The record
indicates that the district court imposed a sentence at the low end of the properly
calculated guidelines range only after thoroughly considering Reyes-Hurtado’s
arguments and the factors set forth in 18 U.S.C. § 3553(a). Thus, we agree with
counsel that it would be frivolous to argue on this record that the sentence is
unreasonable.
Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is
DISMISSED.