NONPRECEDENTIAL DISPOSITION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 October 2, 2008
Decided October 3, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐2093
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of
Indiana, Indianapolis Division.
v.
No. 1:08CR00010‐001
ROBERTO VALADEZ‐MARTINEZ,
Defendant‐Appellant. Larry J. McKinney,
Judge.
O R D E R
Roberto Valadez‐Martinez was found in Indiana just weeks after being deported for
the third time to his native Mexico. Since 1980 when he was first deported, Valadez‐
Martinez has used roughly six social security numbers and forty‐four aliases. He pleaded
guilty to being present again in the United States without authorization, see 8 U.S.C.
§ 1326(a), and was sentenced at the high end of the guidelines range to ninety‐six months’
imprisonment and three years’ supervised release. Valadez‐Martinez filed a notice of
appeal, but his appointed counsel moves to withdraw because he cannot discern a
nonfrivolous basis for the appeal. See Anders v. California, 386 U.S. 738 (1967). We invited
Valadez‐Martinez to respond to counsel’s submission, see CIR. R. 51(b), but he has not. We
No. 08‐2093 Page 2
limit our review to the potential issues identified in counsel’s brief. United States v. Schuh,
289 F.3d 968, 973‐74 (7th Cir. 2002).
Valadez‐Martinez does not want us to set aside his guilty plea, so 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).
Counsel instead focuses on the sentence and first questions whether Valadez‐Martinez
could argue that the district court erred by increasing his offense level by sixteen levels on
the ground that he was deported after a conviction for a “crime of violence.” See U.S.S.G.
§ 2L1.2(b)(1)(A). Valadez‐Martinez did not object to this increase, so our review would be
limited to plain error because he forfeited the argument. See United States v. Wainwright,
509 F.3d 812, 815 (7th Cir. 2007); United States v. Jaimes‐Jaimes, 406 F.3d 845, 848‐49 (7th Cir.
2005).
Using the 2007 sentencing guidelines, the district court set a base offense level of
eight. See U.S.S.G. § 2L1.2(a). Valadez‐Martinez had been arrested more than thirty times
and incurred twenty‐two separate convictions. The court concluded that one of those
convictions, a 2004 felony conviction in Texas for “injury to a child,” see TEX. PENAL CODE
ANN. § 22.04(a) (Vernon 2003), is a “crime of violence” warranting the sixteen‐level increase
under § 2L1.2(b)(1)(A). The particular offense is not listed among those that are
categorically crimes of violence, so it qualifies only if it constitutes an “offense under
federal, state, or local law that has as an element the use, attempted use, or threatened use
of physical force against the person of another.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iii). Counsel
asserts that force is not an element of this crime, and we agree.
Section 22.04(a) does not have as an element the use or threatened use of force. The
act punishes a defendant who causes physical or mental injury to a child. The injury need
not be caused by the application of physical force; indeed, a failure to act that results in
injury can be punished under the statute. See, e.g., United States v. Gracia‐Cantu, 302 F.3d
308, 312‐13 (5th Cir. 2002); Patterson v. State, 46 S.W.3d 294, 301 (Tex. App. 2001) (failing to
report children’s abduction); Thornton v. State, 994 S.W.2d 845, 850‐51 (Tex. App. 1999)
(failing to timely seek medical attention). Moreover, injury to a child can be a felony under
the Texas statute even if the defendant’s conduct was not intentional, see TEX. PENAL CODE
ANN. § 22.04(f) (Vernon 2003) (“When the conduct is engaged in recklessly it shall be a state
jail felony.”); id. § 22.04(g) (“An offense under Subsection (a) when the person acts with
criminal negligence shall be a state jail felony.”); Otting v. State, 8 S.W.3d 681, 690 (Tex.
App. 1999). In this case, the government made no effort to establish through permissible
sources that Valadez‐Martinez was convicted under the subsection having intentional
conduct as an element. See Leocal v. Ashcroft, 543 U.S. 1, 11 (2004) (explaining that 18 U.S.C.
§ 16(a), which defines “crime of violence” to mean “an offense that has an element the use,
No. 08‐2093 Page 3
attempted use, or threatened use of physical force against the person or property of
another,” does not encompass negligent or accidental conduct); United States v. Zuniga‐Soto,
527 F.3d 1110, 1123‐24 (10th Cir. 2008) (relying on Leocal in holding that “mens rea of
recklessness does not satisfy use of physical force requirement under § 2L1.2’s definition of
‘crime of violence’”); United States v. Portela, 469 F.3d 496, 499 (6th Cir. 2006) (same).
Therefore, a conviction under Texas Penal Code § 22.04(a) is not a “crime of violence,” and
this conviction should not have been used to increase Valadez‐Martinez’s offense level.
As counsel explains, however, the district court’s mistake does not matter because
Valadez‐Martinez also has a 1978 conviction for burglary of a habitation that qualifies as a
crime of violence. See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Although this conviction is thirty
years old and thus did not contribute to the calculation of Valadez‐Martinez’s category VI
criminal history, see U.S.S.G. § 4A1.2(e), there is no corresponding age limit for convictions
that trigger an increase under § 2L1.2(b), see id. cmt. 1(B)(vii), cmt. 6; United States v.
Olmos‐Esparza, 484 F.3d 1111, 1116 (9th Cir. 2007); United States v. Torres‐Duenas, 461 F.3d
1178, 1182 (10th Cir. 2006); United States v. Camacho‐Ibarquen, 410 F.3d 1307, 1313 (11th Cir.
2005); United States v. Gonzales, 112 F.3d 1325, 1331 (7th Cir. 1997). A misapplication of the
guidelines that had no effect on the choice of sentence is harmless, Williams v. United States,
503 U.S. 193, 203 (1992), United States v. Schuster, 467 F.3d 614, 620 (7th Cir. 2006), and thus
counsel is correct that any contention about the basis for the sixteen‐level increase would be
frivolous.
Counsel next considers whether Valadez‐Martinez might argue that his prison
sentence is unreasonable because of the Southern District of Indiana lacks a “fast track”
program. Fast‐track sentencing began in states bordering Mexico where defendants who
waive procedural rights and quickly plead to immigration offenses benefit with a lower
sentence. See United States v. Morales‐Chaires, 430 F.3d 1124, 1127 (10th Cir. 2005). Fast‐track
programs have expanded to other regions, id. at 1127 n.1, but are open only to defendants
with a minimal criminal history and only on the government’s motion. See Paul W. Hahn,
Responding to the Fast‐Track Disparity Argument, 54 U.S. ATT’YS’ BULL. 11, 15‐16 (noting
varying standards including the exclusion of aliens previously convicted of a crime of
violence, those whose prior imprisonment has totaled at least ten years, and those with at
least ten criminal history points); U.S.S.G. § 5K3.1 (conditioning eligibility on motion from
government). In this case, because of Valadez‐Martinez’s extensive criminal history, the
government recommended a sentence at the high end of the guidelines range. After
entertaining arguments for a lower sentence, including the contention that Valadez‐
Martinez ought to receive the same breaks as defendants facing immigration charges in
other districts, the district court imposed a term at the high end of the guidelines range.
No. 08‐2093 Page 4
We agree with counsel that it would be a frivolous to further pursue his fast‐track
argument. We have rejected the idea that a sentence can be unreasonable just because the
district where it was imposed does not have a fast‐track program. E.g., United States v.
Pacheco‐Diaz, 506 F.3d 545, 552 (7th Cir. 2007). The Supreme Court’s decision in Kimbrough
v. United States, 128 S. Ct. 558 (2007), has rekindled debate about whether the absence of a
fast‐track program can be a factor in the choice of sentence, compare United States v.
Vega‐Castillo, No. 07‐12141, 2008 WL 3833826, at *3 (11th Cir. August 19, 2008), and United
States v. Rodríguez, 527 F.3d 221, 229 (1st Cir. 2008), with United States v. Gomez‐Herrera, 523
F.3d 554, 562 (5th Cir. 2008), but for Valadez‐Martinez the question is irrelevant. His
extensive criminal history would have disqualified him from fast‐track consideration in any
district, see Hahn, supra, and, moreover, the sentencing court in fact considered and rejected
the absence of a fast‐track program as a basis for imposing a lower sentence. A district
court is never required to accept a defendant’s arguments for a lower sentence. United States
v. Filipiak, 466 F.3d 582, 583 (7th Cir. 2006). All that is necessary is that the court consider
the factors under 18 U.S.C. § 3553(a) along with any nonfrivolous position advocated by the
defendant, which the court did here. 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).
Finally, counsel questions whether Valadez‐Martinez might have a potential claim
of ineffective assistance of counsel. As counsel observes, though, ineffective assistance
claims are best raised in a proceeding under 28 U.S.C. § 2255 where the record can be fully
developed. See Massaro v. United States, 538 U.S. 500, 504‐05 (2003); United States v. Spence,
450 F.3d 691, 694 (7th Cir. 2006).
Accordingly, counsel’s motion to withdraw is GRANTED and the appeal is
DISMISSED.