NONPRECEDENTIAL DISPOSITION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 April 16, 2008
Decided May 1, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
DIANE P. WOOD, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 07‐3561
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of
Wisconsin.
v.
07 CR 38
LUIS BALBOA‐AYALA,
Defendant‐Appellant. Barbara B. Crabb,
Chief Judge.
O R D E R
Mexican citizen Luis Balboa‐Ayala was convicted of illegal reentry in the
Southern District of Texas in 2005. See 8 U.S.C. § 1126(a). He was sentenced to a three‐
year term of unsupervised probation and (for the second time)was immediately
deported. But he returned to the United States the very next day, and in February 2007
he was arrested by local police in Wisconsin and charged with domestic battery. He was
turned over to federal authorities, and in July 2007 he pleaded guilty to being in the
United States without permission after removal. See id. Balboa‐Ayala was sentenced to
No. 07‐3561 Page 2
46 months’ imprisonment in October 2007. He filed a notice of appeal, but his appointed
lawyer now seeks to withdraw under Anders v. California, 386 U.S. 738 (1967), because
he is unable to discern a nonfrivolous issue to pursue. Counsel’s supporting brief is
facially adequate, and Balboa‐Ayala has responded to our invitation under Circuit Rule
51(b) to comment on counsel’s submission. We limit our review to the potential issues
identified in counsel’s brief and Balboa‐Ayala’s response. See United States v. Schuh, 289
F.3d 968, 973‐74 (7th Cir. 2002).
Because Balboa‐Ayala told counsel that he does not want his guilty plea set
aside, counsel appropriately omits any discussion of the adequacy of the plea colloquy
or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670‐72 (7th Cir.
2002). The only potential issues identified by counsel are whether Balboa‐Ayala can
challenge the guidelines calculations and whether his prison sentence is reasonable.
Using the November 2006 version of the sentencing guidelines, the probation
officer set a base offense level of 8, see U.S.S.G. § 2L1.2(a), and added 12 levels because
Balboa‐Ayala was first deported after a 2002 conviction for drug trafficking, see id.
§ 2L1.2(b)(1)(B). The probation officer then subtracted three levels for acceptance of
responsibility. See id. § 3E1.1. In addition, the probation officer proposed a criminal
history category of IV. He began by assigning one criminal history point for a
conviction for driving without a license, an offense for which Balboa‐Ayala received a
sentence of 30 days’ imprisonment. See id. §§ 4A1.1(c), 4A1.2(c)(1). He added three more
points for the drug trafficking conviction, which, after an initial probationary sentence
was revoked, resulted in a sentence of two years’ imprisonment. See id. §§ 4A1.1(a),
4A1.2(k). He added one point for the prior § 1326(a) conviction, see id. § 4A1.1(c), and
two points because the February 2007 state arrest resulted in a conviction and 64‐day
sentence for “battery,” see id. § 4A1.1(b). Last, the probation officer added two points,
bringing the total up to nine, because Balboa‐Ayala committed the second § 1326(a)
violation while still on probation for the first. See id. § 4A1.1(d). Overall, the probation
officer calculated an imprisonment range of 37 to 46 months.
Balboa‐Ayala did not object to the probation officer’s calculations, although he
did mention that his 2007 state conviction was for disorderly conduct, not battery.
Balboa‐Ayala also contended in a presentence memorandum that his criminal history
score was overstated, see § 4A1.3(b), and that consequently he should be sentenced
below the guidelines range. Balboa‐Ayala reasoned that the guidelines did not account
for the additional time he would spend in prison given that his conviction in this case
already had led to the revocation of his probation for his drug offense and most
No. 07‐3561 Page 3
certainly would result in revocation of his probation in the Southern District of Texas.
He also reasoned that his conviction for disorderly conduct would have resulted in a
shorter jail term, and thus 1 instead of 2 criminal history points, see U.S.S.G. § 4A1.1(c),
had he not been sentenced to 64 days as time served. And, last, Balboa‐Ayala asserted
that he would have received three fewer points had his attorneys in the drug and
disorderly‐conduct cases delayed his revocation and sentencing proceedings until after
sentencing in this case.
At sentencing Balboa‐Ayala repeated that he had no objections to the guidelines
calculations. He persisted with the argument that his criminal history category was
overstated and also contended that he deserved lenience because he had learned
English and his previous employer had complimented his work ethic. The district court,
in analyzing the factors under 18 U.S.C. § 3553(a), rejected Balboa‐Ayala’s argument
that his criminal history category was overstated. The court catalogued his prior crimes,
and, though praising Balboa‐Ayala for working hard and learning English, concluded
that his return to the United States in violation of the probationary sentences he was
serving for other convictions demonstrated that a sentence within the guidelines was
necessary to prevent him from committing further crimes. The court accepted the
probation officer’s recommended range of 37 to 46 months’ imprisonment and imposed
a 46 month term to run consecutively to his prison term for the drug offense.
Counsel correctly concludes that challenging Balboa‐Ayala’s prison sentence
would be frivolous. Because Balboa‐Ayala did not object to the guidelines calculations,
he has forfeited any challenge, see United States v. Jaimes‐Jaimes, 406 F.3d 845, 848‐49 (7th
Cir. 2005), and limited our review to a search for plain error, see United States v.
Wainwright, 509 F.3d 812, 815 (7th Cir. 2007). Counsel has not identified any error in the
guidelines calculations, let alone a plain error. And counsel correctly concluded that it
would be frivolous to argue that the sentence was unreasonable, based on the idea that
the district court was somehow compelled to accept Balboa‐Ayala’s contention that his
criminal history category is overstated and should have imposed a below‐range
sentence. We presume that a sentence within the guidelines range is reasonable. See,
e.g., United States v. Nitch, 477 F.3d 933, 937 (7th Cir. 2007); United States v. Mykytiuk, 415
F.3d 606, 608 (7th Cir. 2005). The district court explicitly addressed Balboa‐Ayala’s
argument for a lower sentence and explained its reasons for rejecting that argument.
Nothing more was required. See United States v. Laufle, 433 F.3d 981, 987 (7th Cir. 2006);
United States v. Rodriguez‐Alvarez, 425 F.3d 1041, 1046 (7th Cir. 2005).
No. 07‐3561 Page 4
In his Rule 51(b) response Balboa‐Ayala proposes to argue that competent
counsel would have scheduled his sentencing in this case before the conclusion of his
state cases so that he would have had fewer criminal history points. But Balboa‐Ayala
did not even decide to plead guilty in this case until after his probation for the drug
conviction had been revoked and his sentence for the disorderly‐conduct conviction had
been served, so we cannot see how counsel in the federal case could have done anything
to forestall the additional criminal history points.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.