NONPRECEDENTIAL DISPOSITION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 February 22, 2012
Decided February 22, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 11‐2045
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 10 CR 861‐1
HERIBERTO LOPEZ‐AVILA,
Defendant‐Appellant. Sharon Johnson Coleman,
Judge.
O R D E R
Heriberto Lopez‐Avila pleaded guilty to being in the United States illegally after
having been deported. See 8 U.S.C. § 1326(a). The district court calculated a guidelines
imprisonment range of 70 to 87 months and imposed a sentence of 72 months. Lopez‐Avila
filed a notice of appeal, but his appointed lawyer has concluded that the appeal is frivolous
and seeks to withdraw under Anders v. California, 386 U.S. 738 (1967). Lopez‐Avila has not
responded to counsel’s submission. See CIR. R. 51(b). We confine our review to the potential
issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968,
No. 11‐2045 Page 2
973–74 (7th Cir. 2002).
Lopez‐Avila has informed his attorney that he does not want his guilty plea set
aside. Counsel thus appropriately omitted from his brief any discussion about the adequacy
of the plea colloquy or the voluntariness of the guilty plea. See United States v. Knox, 287 F.3d
667, 671–72 (7th Cir. 2002).
Counsel evaluates only whether Lopez‐Avila could challenge his prison sentence.
He first addresses whether to argue that the district court erroneously applied a 16‐level
upward adjustment in calculating Lopez‐Avila’s guidelines range. We agree with counsel
that it would be frivolous to challenge that increase, which was automatic in view of the
prison sentence Lopez‐Avila had received for a prior drug‐trafficking conviction (the term
exceeded 13 months). See U.S.S.G. § 2L1.2(b)(1)(A)(i) (2010). Moreover, counsel said at
sentencing that he did not object to the guidelines calculations.
Counsel then questions whether Lopez‐Avila could challenge the reasonableness of
his within‐guidelines prison sentence, which is presumed reasonable. See Rita v. United
States, 551 U.S. 338, 347 (2007); United States v. Pillado, 656 F.3d 754, 772 (7th Cir. 2011). This
potential argument also is frivolous. Counsel has not identified any basis to set aside the
presumption of reasonableness, nor have we. The district court emphasized that Lopez‐
Avila not only has an extensive criminal history and but also continued to commit crimes
against this country’s citizens upon returning to the United States after twice being removed
to Mexico. See 18 U.S.C. § 3553(a).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.