NONPRECEDENTIAL DISPOSITION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 8, 2009
Decided October 14, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD A. POSNER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08‐4182
Appeal from the United States District
UNITED STATES OF AMERICA, Court for the Northern District of Illinois,
Plaintiff‐Appellee, Eastern Division.
v. No. 08‐CR‐346‐1
JOSE CLARO MOLINA‐VALERIO, Joan B. Gottschall,
Defendant‐Appellant. Judge.
O R D E R
Jose Claro Molina‐Valerio pleaded guilty to being present in the United States
without permission after having been removed. See 8 U.S.C. § 1326(a), (b). He was
sentenced to 57 months’ imprisonment, to be followed by 3 years’ supervised release if he is
not immediately deported. Molina‐Valerio filed a notice of appeal, but his appointed
counsel moves to withdraw because he does not believe there are any nonfrivolous issues to
raise. See Anders v. California, 386 U.S. 738 (1967). Molina‐Valerio did not accept our
invitation to respond to his lawyer’s submission, see CIR. R. 51(b), so we limit our review to
No. 08‐4182 Page 2
the potential issues identified by counsel. See United States v. Schuh, 289 F.3d 968, 973‐74
(7th Cir. 2002).
Molina‐Valerio served 10 years in a Texas prison for aggravated sexual assault of a
child and was deported in 2001. He returned to the United States, and by 2004 he was back
in prison, this time on an Illinois drug conviction. Federal agents learned that he was in the
United States illegally, but elected not to charge him until he had completed his state term.
In 2008 he pleaded guilty to illegal reentry and was sentenced to the bottom of the
applicable guidelines range.
Counsel first considers whether Molina‐Valerio could assert that the indictment was
defective because (1) it failed to allege one of the elements of § 1326(a), (b)–the element of
intent to reenter, see Carlos‐Colmenares, 253 F.3d 276, 278 (7th Cir. 2001); and (2) it charged
him with violating 6 U.S.C. § 202(4), a non‐criminal statute that authorizes U.S. Homeland
Security to establish rules governing entry into the United States. Counsel correctly
recognizes that these potential arguments are frivolous; defects in an indictment do not
deprive a district court of jurisdiction over the case, United States v. Cotton, 535 U.S. 625, 630
(2002), and Molina‐Valerio waived any non‐jurisdictional challenges to the indictment by
pleading guilty. See United States v. Silvious, 512 F.3d 364, 372 (7th Cir. 2008).
Counsel next examines whether Molina‐Valerio could argue that his 57‐month
sentence exceeded § 1326(a)’s two‐year maximum statutory sentence for aliens like himself,
whose indictment charged him only with being removed from—and later found in—the
United States. But as counsel recognizes, in order to authorize a court to increase the
sentence under § 1326(b), the government need not charge prior felonies in the indictment.
See Almendarez‐Torres v. United States, 523 U.S. 224, 226‐27 (1998); United States v. Price, 516
F.3d 597, 605 (7th Cir. 2008).
Counsel also considers whether Molina‐Valerio could challenge the voluntariness of
his plea because the district court failed to comply with Federal Rule of Criminal Procedure
11(b)(1)(H) by not informing him of any statutory maximum sentence. But an appeal based
on this omission would be frivolous because Molina‐Valerio has not expressed an interest in
withdrawing his guilty plea. See United States v. Knox, 287 F.3d 667, 671‐72 (7th Cir. 2002).
Next, counsel asks whether Molina‐Valerio could challenge the reasonableness of his
sentence, particularly because the government delayed its prosecution of him until the
opportunity for a sentence concurrent with his state sentence had been lost. See, e.g., United
States v. Barrera‐Saucedo, 385 F.3d 533, 537 (5th Cir. 2004); United States v. Los Santos, 283 F.3d
422, 428‐29 (2d. Cir. 2002). Our circuit, however, has not determined whether a district
court may give a defendant a lesser sentence on this ground, and we have noted that none
No. 08‐4182 Page 3
of the other circuits to opine on the issue has supported its decision with extensive
reasoning. See United States v. Villegas‐Miranda, No. 08‐2308, slip op. at 8, 9 (7th Cir. Aug. 27,
2009). In any event the district court addressed the argument, concluding that, because
Molina‐Valerio’s state and federal convictions arose from separate courses of conduct, there
was no reason to presume concurrent sentencing would be appropriate. The district court
gave detailed and meaningful consideration to all Molina‐Valerio’s arguments and the
factors set forth in 18 U.S.C. § 3553(a), and this is all it must do. See United States v. Laufle,
433 F.3d 981, 987 (7th Cir. 2006). Further, as counsel notes, Molina‐Valerio’s sentence is
within the properly calculated guidelines range and thus is presumed reasonable on appeal.
See Rita v. United States, 551 U.S. 338 (2007); United States v. Gama‐Gonzalez, 469 F.3d 1109,
1110 (7th Cir. 2006).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.