The opinion
NONPRECEDENTIAL DISPOSITION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 2, 2012
Decided May 4, 2012
Before
KENNETH F. RIPPLE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 11‐3916
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of Wisconsin.
v. No. 11‐CR‐87‐WMC‐01
JUAN XOLETL‐HERNANDEZ, William M. Conley,
Defendant‐Appellant. Chief Judge.
O R D E R
Juan Xoletl‐Hernandez was serving 20 months in a Wisconsin prison on a cocaine
conviction when a federal grand jury indicted him for illegal reentry by a previously
removed alien, a violation of 8 U.S.C. § 1326. Xoletl‐Hernandez pleaded guilty and was
given a below‐guidelines sentence of 30 months’ imprisonment and one year of supervised
release. He filed a notice of appeal, but his appointed lawyer contends that the appeal is
frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738 (1967). Xoletl‐
Hernandez 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, 973–74 (7th Cir. 2002).
No. 11‐3916 Page 2
Counsel notes that Xoletl‐Hernandez does not want his guilty plea vacated and
therefore properly refrains from discussing the adequacy of the plea colloquy or the
voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 671–72 (7th Cir. 2002).
Counsel does address whether Xoletl‐Hernandez could challenge the reasonableness
of his sentence but properly concludes that any such challenge would be frivolous. The
guidelines range was correctly calculated at 46 to 57 months, reflecting a total offense level
of 17 (base offense level of 8, see U.S.S.G. § 2L1.2(b)(1)(B), plus 12 levels for having
previously been removed after a felony drug conviction for which the sentence was less
than 13 months, see U.S.S.G. § 2L1.2(b)(I)(B), minus three for acceptance of responsibility, see
U.S.S.G. § 3E1.1(a)–(b)) and a criminal history category of V. Xoletl‐Hernandez was
sentenced to 30 months, and we presume on appeal that a below‐guidelines sentence is
reasonable, see Rita v. United States, 551 U.S. 338, 347 (2007); United States v. Klug, 670 F.3d
797, 800 (7th Cir. 2012). Here we are presented with no reason to set aside that presumption.
The district judge specifically discussed the sentencing factors in 18 U.S.C. § 3553(a): he
acknowledged Xoletl‐Hernandez’s remorse and desire to improve himself through
education and drug treatment, see id. § 3553(a)(1), and gave significant weight to the
likelihood that Xoletl‐Hernandez would have received concurrent state and federal
sentences had the federal charges been brought sooner, see id. § 3553(a)(2)(A)–(B). And
although the judge did not clearly state his view of Xoletl‐Hernandez’s argument in
mitigation that the district lacked a fast‐track program, he was not required to, because
Xotletl‐Hernandez did not establish that he would have qualified for fast‐track sentencing
in districts that have it. See United States v. Guajardo‐Martinez, 635 F.3d 1056, 1062 (7th Cir.
2011); United States v. Olmeda‐Garcia, 613 F.3d 721, 724 (7th Cir. 2010).
The motion is to withdraw is GRANTED, and the appeal is DISMISSED.