USA v. Jorge Cardoso-Lopez

Filing 1

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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with FED.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 October 5, 2009 Decided October 5, 2009 Before WILLIAM J. BAUER, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge DIANE S. SYKES, Circuit Judge No. 091137 UNITED STATES OF AMERICA, PlaintiffAppellee, v. No. 08CR133C01 JORGE CARDOSOLOPEZ, DefendantAppellant. Barbara B. Crabb, Chief Judge. O R D E R Jorge CardosoLopez, a Mexican citizen, pleaded guilty to being in the United States without permission after he previously was removed, see 8 U.S.C. 1326(a), and the district court sentenced him to 41 months' imprisonment, the high end of the guidelines range. CardosoLopez appeals, but his appointed counsel now seeks to withdraw under Anders v. California, 386 U.S. 738 (1967), because he cannot discern a nonfrivolous issue to pursue. We review only the potential issues identified in counsel's facially adequate brief and Cardoso Lopez's response under Circuit Rule 51(b). See United States v. Schuh, 289 F.3d 968, 97374 (7th Cir. 2002). Appeal from the United States District Court for the Western District of Wisconsin. No. 091137 Page 2 The sole issue counsel considers is whether CardosoLopez could challenge the reasonableness of his prison sentence. At sentencing CardosoLopez argued that, because the Western District of Wisconsin lacks a "fasttrack" program for illegalreentry cases, a belowguidelines sentence was necessary to achieve parity with defendants in other districts who benefit from such programs. See U.S.S.G. 5K3.1; see generally United States v. PachecoDiaz, 506 F.3d 545, 55253 (7th Cir. 2007). Although we have not yet weighed in on what effect, if any, Kimbrough v. United States, 552 U.S. 85 (2007), has on a district court's discretion to consider fasttrack disparities, see United States v. ArreluceaZamudio, No. 084397, 2009 WL 2914495, at *710 (3d Cir. Sept. 14, 2009); United States v. GonzalezZotelo, 556 F.3d 736, 740 (9th Cir.), petition for cert. filed (U.S. May 8, 2009) (No. 0810326); United States v. VegaCastillo, 540 F.3d 1235, 123839 (11th Cir. 2008), cert. denied, 129 S. Ct. 2825 (2009); United States v. Rodriguez, 527 F.3d 221, 22930 (1st Cir. 2008); United States v. GomezHerrera, 523 F.3d 554, 56264 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008), this case would not require us to join the debate. The district judge explained that, even if she was otherwise inclined to consider reducing a sentence because of the absence of a fasttrack program in Wisconsin, she would not do so in CardosoLopez's case because he has an extensive and violent criminal history and was arrested yet again within weeks of illegally reentering the country. The district court considered CardosoLopez's argument, but was not required to accept it, see United States v. Filipiak, 466 F.3d 582, 583 (7th Cir. 2006), and we therefore agree with counsel that it would be frivolous to further pursue this challenge. Because CardosoLopez was sentenced within the properly calculated guidelines range, we would presume his sentence reasonable on appeal, see United States v. Turner, 569 F.3d 637, 64041 (7th Cir. 2009), and counsel has not identified any reason to cast doubt on that presumption. We turn next to CardosoLopez's Rule 51(b) response, in which he argues that his guilty plea should be set aside because neither the government nor the district court informed him of his right to consular assistance under Article 36 of the Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261. Although Cardoso Lopez recently submitted to the district court a motion to set aside his conviction on this basis, he did not previously raise the argument, so we would review only for plain error. See FED. R. CRIM. P. 52(b); United States v. VillarrealTamayo, 467 F.3d 630, 632 (7th Cir. 2006). Article 36 of the Vienna Convention provides that arresting authorities must inform a foreign national of his right to contact the consulate and must notify the consulate of the arrest. See Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009); see also 28 C.F.R. 250.5 (a)(3) (directing U.S. Attorney to notify appropriate consul of foreign national's arrest). The obligation to inform thus lies solely with the government; contrary to CardosoLopez's suggestion, district courts have no role under Article 36, and therefore the court's failure to No. 091137 Page 3 inform him of his consular rights could not have been error. See Osagiede v. United States, 543 F.3d 399, 402 (7th Cir. 2008) (explaining that Article 36 imposes obligations on the detaining authority). Nor does a failure by arresting authorities to comply with Article 36 trigger automatic reversal of a conviction, United States v. Ademaj, 170 F.3d 58, 67 (1st Cir. 1999); see also SanchezLlamas v. Oregon, 548 U.S. 331, 337 (2006) (holding that arresting officer's failure to comply with Vienna Convention's consularnotification provision does not warrant suppression of evidence); United States v. Bustos de la Pava, 268 F.3d 157, 16566 (2d Cir. 2001) (concluding that government's failure to notify defendant of right to contact consulate does not require dismissal of indictment), and CardosoLopez has not identified any conceivable effect that contacting the Mexican consulate might have had on his decision to plead guilty, see Breard v. Greene, 523 U.S. 371, 377 (1998) (explaining that, even if the Vienna Convention creates enforceable rights, a showing of prejudice is necessary to overturn a conviction); Osagiede, 543 F.3d at 413 (examining possible ways government's failure to inform Nigerian citizen of right to consular notification might have been prejudicial). We therefore conclude that any challenge to CardosoLopez's conviction on this basis would be frivolous. Counsel's motion to withdraw is GRANTED, and CardosoLopez's motion for substitute counsel is DENIED. The appeal is DISMISSED.

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