NONPRECEDENTIAL DISPOSITION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 August 27, 2009
Decided August 28, 2009
Amended September 9, 2009
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD A. POSNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 08‐3947
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of
Wisconsin.
v.
No. 08‐CR‐93
GUADALUPE MACIAS‐MARTINEZ,
Defendant‐Appellant. Charles N. Clevert, Jr.,
Judge.
O R D E R
Guadalupe Macias‐Martinez pleaded guilty to illegally reentering the United States
after being deported following his prison term for drug trafficking. See 8 U.S.C.
§ 1326(b)(2). The district court applied the 16‐level increase for aggravated felonies,
see U.S.S.G. § 2L1.2, in calculating a guidelines imprisonment range of 57 to 71 months, but
imposed a below‐guidelines term, 52 months. Macias‐Martinez filed a notice of appeal, but
his counsel is unable to discern any nonfrivolous claims to pursue and seeks to withdraw.
See Anders v. California, 386 U.S. 738 (1967). We address only the potential issues identified
in counsel’s supporting brief and Macias‐Martinez’s response under CIR. R. 51(b).
See United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
No. 08‐3947 Page 2
Macias‐Martinez reentered the United States a year after he was deported, and
within six months he was again convicted in Wisconsin court of trafficking cocaine. He was
sentenced to 90 days in prison and, on top of that, reimprisoned for approximately 18
months for violating the terms of the supervised release imposed as part of his original
trafficking sentence. During that time, he was taken into federal custody, where he pleaded
guilty to the immigration violation. The district court imposed a new sentence running
concurrently with the reimprisonment term.
Macias‐Martinez does not wish to challenge his guilty plea, so counsel appropriately
refrains from discussing possible arguments about the voluntariness of the plea or the
adequacy of the plea colloquy. See United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002).
Counsel first concludes, and we agree, that any challenge to the reasonableness of
the sentence would be frivolous. The district court considered at length the sentencing
factors set forth in 18 U.S.C. § 3553(a)(2) and imposed a sentence below the guidelines
range. We accord a within‐guidelines sentence a presumption of reasonableness, see Rita
v. United States, 127 S.Ct. 2456, 2462‐64 (2007); 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
presumption is strengthened when the defendant is complaining about a sentence below the
guidelines range applicable to his offense.
Counsel then considers whether Macias‐Martinez could argue that the district court
should have imposed a lesser prison term based on the allegedly substandard conditions of
his presentencing confinement in Wisconsin prisons. At sentencing Macias‐Martinez
asserted that for the past nine months he spent 19 hours a day locked in his cell with limited
access to a television, and that, as a result of his transfers between state and federal custody,
he was unable to access all of the funds in his inmate account. And because he could not
use those funds, he continued, he went without needed dental care and sundries that would
have eased his time in jail. But, as counsel notes, conditions of presentencing confinement
are not among the factors that judges must consider in crafting a sentence. See 18 U.S.C.
3553(a)(2); United States v. Turner, 569 F.3d 637, 642 (7th Cir. 2009). Even though a lower
sentence might be justified by conditions of presentencing confinement that are
extraordinarily harsh, United States v. Campos, 541 F.3d 735, 751 (7th Cir. 2008), there are two
reasons why it would be frivolous for Macias‐Martinez to claim that the district court had to
address the circumstances of his detention. First, he presented no documentation showing
that conditions were as unpleasant as he alleged. See id. Second, putting aside the
evidentiary issue, the conditions Macias‐Martinez described were not unusually harsh and
thus did not merit the judge’s attention. See United States v. Ramirez‐Gutierrez, 503 F.3d 643,
No. 08‐3947 Page 3
646 (7th Cir. 2007) (poor ventilation, inadequate opportunities to exercise, and lack of dental
care not so harsh as to warrant special consideration).
The final potential issue identified by counsel is the district court’s failure to consider
the absence of a “fast track” program for illegal reentry cases in the Eastern District of
Wisconsin. We have consistently held that a sentencing judge in a district without a “fast
track” program may not take into account the fact that similar defendants in districts
operating such programs could receive lower sentences. See United States v. Pacheco‐Diaz,
506 F.3d 545, 552 (7th Cir. 2007); United States v. Galicia‐Cardenas, 443 F.3d 553, 555 (7th Cir.
2006). Those cases all, however, predate Kimbrough v. United States, 128 S. Ct. 558 (2007),
and other circuits are split on whether that decision requires them to reevaluate a district
court’s discretion to consider fast‐track disparities. Compare United States v. Rodríguez, 527
F.3d 221, 229 (1st Cir. 2008) (overruling previous cases that held a district court lacked
discretion), with United States v. Gomez‐Herrera, 523 F.3d 554, 562 (5th Cir. 2008), United
States v. Vega‐Castillo, 540 F.3d 1235, 1238‐39 (11th Cir.2008), and United States v.
Gonzalez‐Zotelo, 556 F.3d 736, 740 (9th Cir. 2009). Even so, because Macias‐Martinez never
asked the court to exercise discretion, it would be frivolous to argue on appeal that it
abused its discretion. See United States v. Filipiak, 466 F.3d 582, 584 (7th Cir. 2006).
Macias‐Martinez contends that the district court should have shortened his sentence
based on the amount of time he had already served on his reimprisonment. He points to
U.S.S.G. § 5G1.3(b)(1), which requires a district court to reduce a sentence to reflect time
served on an undischarged prison term that was imposed for an offense already taken into
account by the guidelines calculation. See United States v. Bangsengthong, 550 F.3d 681, 682
(7th Cir. 2008); United States v. Knight, 562 F.3d 1314, 1329 (11th Cir. 2009). By Macias‐
Martinez’s reckoning, proper application of § 5G1.3(b) would have shaved eight months off
his prison term. Yet application note 2(B) specifically explains that § 5G1.3(b) does not
apply in a case like this, where the current offense is illegal entry and the prior offense was
an aggravated felony. See United States v. Morales‐Castillo, 314 F.3d 561, 563‐64 (11th Cir.
2002).
Lastly, Macias‐Martinez proposes arguing that his counsel performed deficiently by
failing to ask the district court to consider fast‐track disparities and § 5G1.3(b). But a claim
of ineffective assistance of counsel is better left to collateral appeal, where a record devoted
to counsel’s performance can be developed, and it would be frivolous to argue that this is
the exceptional case where ineffectiveness is apparent from the trial record. United States
v. Recendiz, 557 F.3d 511, 531 (7th Cir.2009); see United States v. Harris, 394 F.3d 543, 557‐58
(7th Cir. 2005). Macias‐Martinez believes that the current record shows egregious behavior
on counsel’s part simply because he failed to raise those issues in the district court, but we
No. 08‐3947 Page 4
would give “every indulgence” to the possibility that counsel’s decision was tactical,
Recendiz, 557 F.3d at 531.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.