USA v. Jose Molina-Valerio

Filing 1


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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 October 8, 2009 Decided October 14, 2009 Before FRANK H. EASTERBROOK, Chief Judge RICHARD A. POSNER, Circuit Judge TERENCE T. EVANS, Circuit Judge No. 084182 UNITED STATES OF AMERICA, PlaintiffAppellee, v. JOSE CLARO MOLINAVALERIO, DefendantAppellant. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 08CR3461 Joan B. Gottschall, Judge. O R D E R Jose Claro MolinaValerio pleaded guilty to being present in the United States without permission after having been removed. See 8 U.S.C. § 1326(a), (b). He was sentenced to 57 months' imprisonment, to be followed by 3 years' supervised release if he is not immediately deported. MolinaValerio filed a notice of appeal, but his appointed counsel moves to withdraw because he does not believe there are any nonfrivolous issues to raise. See Anders v. California, 386 U.S. 738 (1967). MolinaValerio did not accept our invitation to respond to his lawyer's submission, see CIR. R. 51(b), so we limit our review to No. 084182 Page 2 the potential issues identified by counsel. See United States v. Schuh, 289 F.3d 968, 97374 (7th Cir. 2002). MolinaValerio served 10 years in a Texas prison for aggravated sexual assault of a child and was deported in 2001. He returned to the United States, and by 2004 he was back in prison, this time on an Illinois drug conviction. Federal agents learned that he was in the United States illegally, but elected not to charge him until he had completed his state term. In 2008 he pleaded guilty to illegal reentry and was sentenced to the bottom of the applicable guidelines range. Counsel first considers whether MolinaValerio could assert that the indictment was defective because (1) it failed to allege one of the elements of § 1326(a), (b)­the element of intent to reenter, see CarlosColmenares, 253 F.3d 276, 278 (7th Cir. 2001); and (2) it charged him with violating 6 U.S.C. § 202(4), a noncriminal statute that authorizes U.S. Homeland Security to establish rules governing entry into the United States. Counsel correctly recognizes that these potential arguments are frivolous; defects in an indictment do not deprive a district court of jurisdiction over the case, United States v. Cotton, 535 U.S. 625, 630 (2002), and MolinaValerio waived any nonjurisdictional challenges to the indictment by pleading guilty. See United States v. Silvious, 512 F.3d 364, 372 (7th Cir. 2008). Counsel next examines whether MolinaValerio could argue that his 57month sentence exceeded § 1326(a)'s twoyear maximum statutory sentence for aliens like himself, whose indictment charged him only with being removed from--and later found in--the United States. But as counsel recognizes, in order to authorize a court to increase the sentence under § 1326(b), the government need not charge prior felonies in the indictment. See AlmendarezTorres v. United States, 523 U.S. 224, 22627 (1998); United States v. Price, 516 F.3d 597, 605 (7th Cir. 2008). Counsel also considers whether MolinaValerio could challenge the voluntariness of his plea because the district court failed to comply with Federal Rule of Criminal Procedure 11(b)(1)(H) by not informing him of any statutory maximum sentence. But an appeal based on this omission would be frivolous because MolinaValerio has not expressed an interest in withdrawing his guilty plea. See United States v. Knox, 287 F.3d 667, 67172 (7th Cir. 2002). Next, counsel asks whether MolinaValerio could challenge the reasonableness of his sentence, particularly because the government delayed its prosecution of him until the opportunity for a sentence concurrent with his state sentence had been lost. See, e.g., United States v. BarreraSaucedo, 385 F.3d 533, 537 (5th Cir. 2004); United States v. Los Santos, 283 F.3d 422, 42829 (2d. Cir. 2002). Our circuit, however, has not determined whether a district court may give a defendant a lesser sentence on this ground, and we have noted that none No. 084182 Page 3 of the other circuits to opine on the issue has supported its decision with extensive reasoning. See United States v. VillegasMiranda, No. 082308, slip op. at 8, 9 (7th Cir. Aug. 27, 2009). In any event the district court addressed the argument, concluding that, because MolinaValerio's state and federal convictions arose from separate courses of conduct, there was no reason to presume concurrent sentencing would be appropriate. The district court gave detailed and meaningful consideration to all MolinaValerio's arguments and the factors set forth in 18 U.S.C. § 3553(a), and this is all it must do. See United States v. Laufle, 433 F.3d 981, 987 (7th Cir. 2006). Further, as counsel notes, MolinaValerio's sentence is within the properly calculated guidelines range and thus is presumed reasonable on appeal. See Rita v. United States, 551 U.S. 338 (2007); United States v. GamaGonzalez, 469 F.3d 1109, 1110 (7th Cir. 2006). Accordingly, we GRANT counsel's motion to withdraw and DISMISS the appeal.

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