NONPRECEDENTIAL DISPOSITION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 March 11, 2009
Decided March 11, 2009
Before
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐2822
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of
Wisconsin.
v.
No. 08‐CR‐46‐C‐01
ALFREDO T. MENDEZ,
Defendant‐Appellant. Barbara B. Crabb,
Chief Judge.
O R D E R
Alfredo Mendez pleaded guilty to one count of distributing cocaine. See 21 U.S.C.
§ 841(a)(1). The district court selected a 54‐month sentence, which was in the middle of the
guidelines range. Mendez filed a notice of appeal, but his appointed counsel now seek to
withdraw under Anders v. California, 386 U.S. 738 (1967), because they cannot discern a
nonfrivolous basis for appeal. Mendez has not accepted our invitation to comment on
counsel’s motion. See CIR. R. 51(b). Because counsel’s supporting brief is facially adequate,
we limit our review to the potential issues identified in counsel’s brief. See United States v.
Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
Counsel begin by telling us that Mendez does not wish to challenge his guilty plea.
So counsel appropriately refrain from discussing whether Mendez could argue that his plea
was not voluntary. See United States v. Knox, 287 F.3d 667, 670‐71 (7th Cir. 2002).
No. 08‐2822 Page 2
Counsel next consider whether Mendez could challenge the calculation of his
guidelines range. Counsel have explained in detail the district court’s application of the
guidelines, but the only potential errors they identify are the court’s conclusion as to the
amount of drugs Mendez was responsible for and its decision to increase Mendez’s offense
level by two levels under U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon while
selling drugs. Mendez did not object to the guidelines calculation at the sentencing hearing;
thus, our review would be for plain error. United States v. Wainwright, 509 F.3d 812, 815 (7th
Cir. 2007).
Any challenge to the relevant conduct included in the overall drug quantity would
be frivolous. A court may base a defendant’s sentence on relevant conduct that is “part of
the same course of conduct or common scheme as the offense of conviction.” U.S.S.G.
§ 1B1.3(a)(2); United States v. Wilson, 502 F.3d 718, 723 (7th Cir. 2007); United States v. Ortiz,
431 F.3d 1035, 1040 (7th Cir. 2005). The record contains ample evidence that all of the
relevant conduct included in the drug quantity was part of Mendez’s ongoing drug‐sales
activities. Mendez admitted that he sold 55 grams of cocaine to an undercover officer, and,
according to the uncontested facts in the presentence investigation report, Mendez also sold
cocaine to the same officer on two other occasions. All three of these similar transactions
occurred within a few months of each other. Furthermore, after Mendez’s arrest, the police
found in his home “re‐sale quantities” of marijuana and cocaine, along with scales and
plastic baggies, all materials necessary to advance Mendez’s operation.
We also agree with counsel that any argument that the district court erred in
applying the weapons adjustment would be frivolous. Mendez stipulated in the plea
agreement that this adjustment was warranted; thus, he has waived the right to challenge it
on appeal. See United States v. Siegler, 272 F.3d 975, 978 (7th Cir. 2001).
Furthermore, counsel is correct that a challenge to the reasonableness of Mendez’s
54‐month prison term would be frivolous. A within‐guidelines sentence like Mendez’s is
presumptively reasonable on appeal. See United States v. Shannon, 518 F.3d 494, 496 (7th Cir.
2008); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). And the district court
considered the relevant factors under 18 U.S.C. § 3553(a), balancing Mendez’s steady
employment history and care for his children against evidence that he sold stolen property,
attempted to sell a gun to an undercover police officer, created fraudulent identification
documents, and illegally reentered the country after he was deported.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.