USA v. Nemesio Rivera-Orta
Filed Nonprecedential Disposition PER CURIAM. Counsel's motion to withdraw is GRANTED, and the appeal is DISMISSED. Daniel A. Manion, Circuit Judge; Michael S. Kanne, Circuit Judge and Ann Claire Williams, Circuit Judge. [6808769-2] [6826761-1]  [16-2090]
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 March 17, 2017
Decided March 17, 2017
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
UNITED STATES OF AMERICA,
Appeal from the United States
District Court for the Northern District
of Illinois, Eastern Division.
No. 12 CR 614-1
Rebecca R. Pallmeyer,
Nemesio Rivera-Orta, a 60-year-old Mexican citizen, twice arranged for a
coconspirator to deliver high-purity methamphetamine to an informant. With DEA
agents watching, the informant paid Rivera-Orta and received the methamphetamine—
totaling 7.4 kilograms. Rivera-Orta was charged with conspiracy and possessing
methamphetamine for distribution, see 21 U.S.C. §§ 846, 841(a)(1), and for nearly two
years plea negotiations dragged on. Eventually he pleaded guilty to the conspiracy in
exchange for dismissal of the substantive counts. He was sentenced to 140 months’
imprisonment, below the calculated guidelines range.
Rivera-Orta 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).
Rivera-Orta opposes that motion. See CIR. R. 51(b). Counsel has submitted a brief that
explains the nature of the case and addresses issues that an appeal of this kind might be
expected to involve. Because the analysis in the brief appears thorough, we limit our
discussion to the issues identified in that brief and in Rivera-Orta’s response.
See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014); United States v. Wagner, 103 F.3d
551, 553 (7th Cir. 1996).
Counsel represents that Rivera-Orta does not want his guilty plea set aside, and
thus counsel appropriately forgoes discussing the voluntariness of the plea or the
adequacy of the plea colloquy. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir.
2012); United States v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002).
Counsel questions whether Rivera-Orta could challenge the district court’s
finding that, for purposes of calculating the guidelines range, he was responsible for
7.4 kilograms of methamphetamine. Counsel recognizes, however, that an appellate
claim would be frivolous because a total of 7.4 kilograms was recovered by the DEA in
the two sales arranged by the defendant. The drug quantity was incontestable, which
explains why Rivera-Orta’s former attorney did not object to the quantity finding.
Counsel tells us that Rivera-Orta wishes to argue that he should have received
relief under the “safety valve,” which, if specified criteria are satisfied, allows a drug
offender to skirt any statutory minimum and possibly benefit from a 2-level downward
adjustment under the sentencing guidelines. See 18 U.S.C. § 3553(f); U.S.S.G.
§§ 2D1.1(b)(17), 5C1.2. One criterion is that, no later than the time of sentencing, the
defendant disclose to the government “all information and evidence” in his possession
“concerning the offense or offenses that were part of the same course of conduct or of a
common scheme or plan.” U.S.S.G. § 5C1.2(a)(5); United States v. Alvarado-Tizoc, 656 F.3d
740, 746 (7th Cir. 2011). Yet, as counsel notes, nothing in the record suggests that
Rivera-Orta satisfied this condition. See United States v. Sainz-Preciado, 566 F.3d 708, 715
(7th Cir. 2009) (explaining that defendant who does not make full disclosure is not
eligible for safety valve); United States v. Olivas-Ramirez, 487 F.3d 512, 517 (7th Cir. 2007)
(same). In his Rule 51(b) response, Rivera-Orta does not dispute appellate counsel’s
representation that he did not satisfy the criteria for eligibility, making any claim about
the safety valve frivolous. See United States v. Syms, 846 F.3d 230, 235 (7th Cir. 2017)
(explaining that defendant bears burden of establishing eligibility for safety valve).
Counsel next considers whether Rivera-Orta could argue that his 140-month
prison term is unreasonable. That sentence is below the guidelines range of 168 to
210 months and thus presumptively reasonable. See Rita v. United States, 551 U.S. 338,
347 (2007); United States v. Long, 748 F.3d 322, 332 (7th Cir. 2014). Counsel has not
identified any reason to set aside that presumption, nor can we. The district court
weighed the sentencing factors in 18 U.S.C. § 3553(a), comparing the seriousness of the
offense and the need to protect the public from further crimes, id. § 3553(a)(2)(A), (C),
with Rivera-Orta’s age, criminal history, difficult childhood, and family ties, as well as
his need for medical treatment for his fractured wrist, see id. § 3553(a)(1).
In his Rule 51(b) response, Rivera-Orta protests that he did not receive “the
benefit of being a minor participant,” i.e., a 2-level decrease under U.S.S.G. § 3B1.2(b).
But Rivera-Orta waived any claim to this downward adjustment when his former
counsel acknowledged at sentencing that Rivera-Orta was opposing a proposed upward
adjustment for a leadership role but was “not asking for a minor or mitigating role.”
See United States v. Hible, 700 F.3d 958, 961 (7th Cir. 2012); United States v. Gaona, 697 F.3d
638, 641 (7th Cir. 2012).
Rivera-Orta also complains about the greater length of his prison sentence
relative to his coconspirator. The coconspirator pleaded guilty to an offense with a
lower statutory-minimum sentence and was sentenced to 24 months’ imprisonment,
which the government explained was because of his lesser culpability and personal
characteristics. But Rivera-Orta’s complaint is frivolous because a concern about
sentencing disparities, see 18 U.S.C. § 3553(a)(6), relates to differences between judges or
districts, not among codefendants in the same case. See United States v. Grigsby, 692 F.3d
778, 792 (7th Cir. 2012); United States v. Scott, 631 F.3d 401, 405 (7th Cir. 2011). So even
though the district court did not address his argument about his coconspirator’s
sentence, the district court was free to pass over it without comment. See United States v.
Martin, 718 F.3d 684, 688 (7th Cir. 2013).
Rivera-Orta also asserts that the district court did not consider his family ties and
the inadequate medical treatment he allegedly had received while detained pending
trial, and did not fairly consider his good record over the past 30 years. But the district
court discussed Rivera-Orta’s criminal history, family ties, and need for medical
treatment, and relied on those factors to justify a below-guidelines sentence.
See United States v. Davis, 764 F.3d 690, 694 (7th Cir. 2014) (explaining that sentencing
court need only say enough about argument in mitigation to demonstrate reasonable
exercise of “legal decision-making authority”); United States v. Dachman, 743 F.3d 254,
262 (7th Cir. 2014) (same).
There is one final matter. By statute, the district court was compelled to impose a
minimum term of 5 years’ supervised release to follow Rivera-Orta’s imprisonment.
See 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(viii). Yet the district court, with the prosecutor
standing by silently, imposed a 1-year term with the explanation that Rivera-Orta
would be removed from the country after his release from prison. Then the sentencing
court corrected clerical mistakes in the written judgment on the authority of Federal
Rule of Criminal Procedure 36, but at the same time eliminated even that one year of
supervised release. That step, too, was unauthorized. See United States v. Johnson,
571 F.3d 716, 718 (7th Cir. 2009) (explaining that district judge may use Rule 36 to
conform judgment to sentence actually imposed but cannot use Rule 36 to change
sentence even if erroneous). But the government has not filed a cross-appeal from the
initial judgment or appealed the amended judgment, so the amended judgment remains
in place. See Greenlaw v. United States, 554 U.S. 237, 240 (2008); United States v. Maday,
799 F.3d 776, 778–79 (7th Cir. 2015) (noting that prison term below statutory minimum
would stand because government did not file cross-appeal), cert. denied, 136 S. Ct. 1688
(2016); Romandine v. United States, 206 F.3d 731, 735–38 (7th Cir. 2000) (noting that
unauthorized revisions to sentence will stand if not appealed by government).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.
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