NONPRECEDENTIAL DISPOSITION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 May 3, 2018
Decided May 4, 2018
Before
JOEL M. FLAUM, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 18‐1186
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Illinois.
v. No. 17‐CR‐30113‐MJR
GEOVANY CALDERON‐OSORIO, Michael J. Reagan,
Defendant‐Appellant. Chief Judge.
O R D E R
Geovany Calderon‐Osorio sold methamphetamine to confidential informants in
southern Illinois on several occasions over the course of seven months. While the police
built a case against him by arranging the controlled buys, Calderon‐Osorio had other
run‐ins with the law. He was unlucky enough to have a car accident after which
witnesses observed him throwing items into a wooded area before the police arrived at
the scene. The witnesses told police officers, who recovered his loot—
methamphetamine—from the woods, in addition to one bag of methamphetamine that
had not made it past the ground outside the passenger‐side door. On another occasion
police officers stopped Calderon‐Osorio’s car, and one officer detected a strong
marijuana odor and observed marijuana debris on Calderon‐Osorio’s shirt. A search
No. 18‐1186 Page 2
uncovered both marijuana and cocaine. Further, Calderon‐Osorio’s cell phone and
social media posts had photographs of him with firearms, large amounts of cash, and
drugs. Calderon‐Osorio was then charged by indictment with two counts of possessing
with an intent to distribute methamphetamine and a cocaine mixture, 21 U.S.C.
§ 841(a)(1), (b)(1), and five counts of distributing methamphetamine, id.
Without the benefit of a plea agreement, Calderon‐Osorio pleaded guilty to all
the charges. A presentence investigation report set his base offense level at 32, based on
5,348 kilograms of marijuana equivalency units that law enforcement attributed to him,
U.S.S.G. § 2D1.1(c)(4). The report recommended a two‐level adjustment because
Calderon‐Osorio possessed a gun while committing his crimes, id. § 2D1.1(b)(1), and
then deducted three levels for acceptance of responsibility, id. § 3E1.1(a), (b). With these
adjustments, the report arrived at a recommended offense level of 31 and a
criminal‐history category of V, id. § 4A1.1(c). The district court adopted the report
without objection from Calderon‐Osorio, calculated a sentencing guidelines range of
135 to 168 months’ imprisonment, and imposed a 144‐month term. The judge rejected
Calderon‐Osorio’s argument that the methamphetamine guideline artificially inflates
sentences for trafficking that drug. The judge observed that highly pure
methamphetamine like Calderon‐Osorio’s (84%) is more addictive than heroin, and
that, in his experience, methamphetamine was getting purer and purer over time.
Calderon‐Osorio now appeals, but his appointed attorney moves to withdraw
his representation under Anders v. California, 386 U.S. 738 (1967). Calderon‐Osorio has
not responded to counsel’s motion. See CIR. R. 51(b). Counsel has submitted a brief that
explains the nature of the case and addresses the issues that a case of this kind might be
expected to involve. Because counsel’s brief appears thorough, we limit our review to
the potential issues that are discussed. See United States v. Bey, 748 F.3d 774, 776 (7th Cir.
2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
Counsel reports that because Calderon‐Osorio “does not wish to withdraw his
guilty plea” he does not discuss a challenge to whether the plea was knowing and
voluntary. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v.
Knox, 287 F.3d 667, 670–71 (7th Cir. 2002). This is appropriate if the lawyer has informed
the client of the risks and benefits challenging the plea and the client says he does not
wish to withdraw the plea. Konczak, 683 F.3d at 349. Counsel, however, does not say
whether he advised Calderon‐Osorio on this point. Nonetheless, we can grant an Anders
request if we review the plea colloquy and determine that any challenge to the plea
would be frivolous. See id.
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A challenge to the plea would be pointless for Calderon‐Osorio because the
magistrate judge, who took the plea and then recommended that the district judge
accept it, complied with Federal Rule of Criminal Procedure 11 and ensured that the
plea was voluntary. The magistrate judge properly informed Calderon‐Osorio of the
nature of the charge, the possible penalties, the right to trial that he was forfeiting, and
the importance of the sentencing guidelines. FED. R. CRIM. P. 11(b). He also determined
that the parties’ stipulation of facts provided an adequate factual basis and that the plea
was not a result of force, threats, or promises. See id.
Calderon‐Osorio’s attorney next considers whether the district court committed
any procedural errors at sentencing. He first assesses whether the district court erred in
calculating the offense level. See United States v. Young, 863 F.3d 685, 688 (7th Cir. 2017).
Calderon‐Osorio did not challenge the 5,348 kilograms of marijuana equivalency units
used to calculate his base offense level; counsel correctly checks the district court’s math
and sees no potential error, nor do we. Further, we would not even reach a drug‐
quantity argument because it is waived. Calderon‐Osorio expressly agreed that the PSR
was “all true, correct, and accurate,” and stated that he had no objections.
See United States v. Garcia, 580 F.3d 528, 542 (7th Cir. 2009) (failure to object to PSR can
waive a drug‐quantity argument where defendant “had access to the PSR, knew of his
right to object, considered objecting to portions of the PSR other than the one he now
challenges, and stated on the record that he did not have any further objections when
asked by the district court.”). Further, counsel can think of no basis on which to
undermine the finding that Calderon‐Osorio possessed firearms in connection with his
offenses, see U.S.S.G. § 2D1.1 cmt. n.11— he even discussed selling a gun and drugs to
the confidential informant in the same conversation. Again, we agree.
Counsel further contemplates whether the district judge procedurally erred in
failing to consider any principal arguments in mitigation. See United States v. Armand,
856 F.3d 1142, 1146 (7th Cir. 2017) (acknowledging district court must consider all
nonfrivolous, principal arguments at sentencing). But the judge discussed Calderon‐
Osorio’s argument about the purported flaw in the methamphetamine guideline and
rejected it. The judge also listed another half‐dozen mitigating arguments, which he
later addressed in his explanation of the sentence. Counsel correctly concludes that an
argument contending otherwise would be frivolous.
Inquiring whether the district judge might have erred in linking Calderon‐
Osorio’s conduct to the broader harm resulting from methamphetamine and in
No. 18‐1186 Page 4
discussing information outside the record (the judge’s observations about
addictiveness), counsel rightly concludes that those arguments are forfeited. And we
would not find plain error resulting from the judge’s explanation of why he disagreed
with the defendant’s mitigating argument; the discussion “does not call into question
the fairness, integrity, or public reputation of the proceeding.” United States v. Lewis,
823 F.3d 1075, 1084 (7th Cir. 2016). Moreover, the judge did not select a sentence based
on this rationale alone.
Finally, counsel evaluates whether Calderon‐Osorio could challenge the
reasonableness of his sentence. We agree with counsel that this challenge would be
frivolous. On appeal we presume that a within‐guidelines sentence is reasonable,
United States v. Cunningham, 883 F.3d 690, 701 (7th Cir. 2018), and counsel finds nothing
in the record to rebut that presumption here. Furthermore, the district judge took into
account the aggravating and mitigating factors in weighing the 3553(a) factors, and
Calderon‐Osorio expressly waived “any further amplification of the 3553(a) factors.”
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.