NONPRECEDENTIAL DISPOSITION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 20, 2012
Decided August 22, 2012
Before
RICHARD D. CUDAHY, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 11‐3104
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 417
PEDRO HERNANDEZ‐LOPEZ,
Defendant‐Appellant. James B. Zagel,
Judge.
O R D E R
Pedro Hernandez‐Lopez, an undocumented Mexican citizen, was arrested in
Chicago in 2009 and charged in state court with aggravated robbery. That charge remains
pending, but because Hernandez‐Lopez already had been removed from the United States
three times before this arrest, he was charged in federal court with being in the United
States illegally after removal. See 8 U.S.C. § 1326(a). He pleaded guilty to that charge. The
district court calculated a total offense level of 21: a base offense level of 8, plus 16 levels
because Hernandez‐Lopez had been deported after a conviction for a felony crime of
violence, less 3 levels for acceptance of responsibility. See U.S.S.G. §§ 2L1.2(a), (b)(1)(A)(ii),
3E1.1. With a criminal‐history category of VI, Hernandez‐Lopez faced a guidelines
imprisonment range of 77 to 96 months. The court imposed a sentence of 77 months.
Hernandez‐Lopez filed a notice of appeal, but his appointed attorney asserts that the appeal
is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738 (1967).
No. 11‐3104 Page 2
Hernandez‐Lopez has not filed a response. 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, 973–74 (7th Cir. 2002).
Counsel first considers whether Hernandez‐Lopez might challenge the validity of his
guilty plea. Counsel does not say whether he discussed this possible issue with Hernandez‐
Lopez, see United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002), but the lawyer’s thorough
discussion of the plea colloquy and our own review of the record on appeal convince us that
a challenge to the guilty plea would be frivolous. See United States v. Konczak, 683 F.3d 348,
349 (7th Cir. 2012). Counsel did not identify any deficiency in the plea colloquy, during
which the court ensured that a factual basis exists for the § 1326(a) charge and that
Hernandez‐Lopez was pleading guilty voluntarily with a full understanding of the charge,
the possible penalties, and the rights he would give up by pleading guilty. See FED. R. CRIM.
P. 11(b).
Counsel next considers whether Hernandez‐Lopez could challenge his criminal‐
history score but appropriately rejects this potential argument as frivolous. Counsel focuses
on two criminal‐history points that Hernandez‐Lopez received on a conviction for
disorderly conduct, which was based on his assault of a fellow detainee while he was in
pretrial detention for this case. Counsel is correct that Hernandez‐Lopez properly received
points for the disorderly conduct conviction because he was convicted and sentenced for
that crime before the sentencing in this case, U.S.S.G. § 4A1.2 cmt. n.1; United States v.
Townsend, 408 F.3d 1020, 1026 (8th Cir. 2005), and that the conviction warranted two points
rather than just one because he was sentenced to more than 60 days in jail for that crime, id.
§ 4A1.1(b); United States v. Williams, 553 F.3d 1073, 1083 (7th Cir. 2009).
Counsel next considers whether Hernandez‐Lopez could argue that the district
court improperly failed to consider his fast‐track argument. But counsel is correct that this
potential argument would be frivolous. A district court need not consider a fast‐track
argument unless the defendant has satisfied the minimum eligibility criteria and shown that
he would qualify for a reduced sentence in at least one district with a fast‐track program,
which Hernandez‐Lopez made no attempt to do. United States v. Ramirez, 675 F.3d 634, 642
(7th Cir. 2011). In any event, the district court did discuss Hernandez‐Lopez’s argument, but
decided that the other factors in 18 U.S.C. § 3553(a) pointed to the conclusion that a sentence
commensurate with a fast‐track reduction would be too low.
Counsel last considers whether Hernandez‐Lopez could challenge the
reasonableness of his prison sentence. That sentence is at the low end of the guidelines
range and entitled to a presumption of reasonableness. See Rita v. United States, 551 U.S. 338,
347 (2007); United States v. Pape, 601 F.3d 743, 746 (7th Cir. 2010). Counsel has not identified
No. 11‐3104 Page 3
any reason to set aside that presumption, nor can we. Looking to the factors in 18 U.S.C.
§ 3553(a), the district court acknowledged that Hernandez‐Lopez came to the United States
in search of economic opportunity, but explained that a within‐guidelines sentence was
appropriate because Hernandez‐Lopez repeatedly entered this country illegally.
The motion to withdraw is GRANTED, and the appeal is DISMISSED.