USA v. Andrade-Moreno, Jose

Filing 25

Opinion

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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 July 25, 2007 Decided July 26, 2007 Before Hon. WILLIAM J. BAUER, Circuit Judge Hon. RICHARD D. CUDAHY, Circuit Judge Hon. MICHAEL S. KANNE, Circuit Judge No. 06-1375 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE ANDRADE-MORENO, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Illinois No. 3:04CR30071-006-GPM G. Patrick Murphy, Chief Judge. ORDER Jose Andrade-Moreno pleaded guilty to conspiring to distribute marijuana. See 21 U.S.C. 841(a)(1). The drug amount exceeded 1000 kilograms and AndradeMoreno already had a prior conviction for a felony drug offense, so the district court sentenced him to the statutory minimum of 120 months. See 21 U.S.C. 841(b)(1)(B). Andrade-Moreno appeals, but his attorney moves to withdraw under Anders v. California, 386 U.S. 738 (1967), because he cannot discern any nonfrivolous ground for appeal. We invited Andrade-Moreno to respond to counsel's motion, see Cir. R. 51(b), but he has not done so. Our review is limited to the points No. 06-1375 Page 2 discussed in counsel's facially adequate brief. See United States v. Schuh, 289 F.3d 968, 97374 (7th Cir. 2002). In his supporting brief, counsel considers only whether Andrade-Moreno might argue under Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), that the district court was not authorized to impose the statutory minimum without first requiring the government to prove his prior conviction beyond a reasonable doubt. But it is well-established that a district court may make factual findings at sentencing concerning a defendant's criminal history that subject him to an increased penalty, and those facts need not be admitted or proved to a jury beyond a reasonable doubt. See Almendarez-Torres v. United States, 523 U.S. 224 (1998); United States v. Williams, 410 F.3d 397, 401-02 (7th Cir. 2005). Apprendi and Blakely left the holding in Almendarez-Torres undisturbed and, in any event, neither case is implicated when, as here, the sentence imposed does not exceed the statutory maximum. See Harris v. United States, 536 U.S. 545, 566-67 (2002); Williams, 410 F.3d at 402. We thus agree with counsel that it would be frivolous to argue that the district court improperly sentenced Andrade-Moreno to the statutory minimum term of imprisonment. Accordingly, counsel's motion to withdraw is GRANTED, and the appeal is DISMISSED.

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