USA v. Jaime Aguirre
Filed Nonprecedential Disposition PER CURIAM. Counsel's motion to withdraw is GRANTED, and the appeal is DISMISSED. Joel M. Flaum, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Ann Claire Williams, Circuit Judge. [6808172-2] [6847952-1]  [16-3184]
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 June 14, 2017
Decided June 15, 2017
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, 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. 13 CR 333
Harry D. Leinenweber,
O R D E R
Jaime Aguirre pleaded guilty to using a dangerous weapon to assault a nurse
who was on duty at her job with the Bureau of Prisons. See 18 U.S.C. § 111(a)(1), (b). He
was sentenced to 100 months in prison. Aguirre has appealed, but his appointed lawyer,
who also represented Aguirre in the district court, asserts that the appeal is frivolous and
seeks to withdraw under Anders v. California, 386 U.S. 738, 744 (1967). We invited Aguirre
to respond to counsel’s motion, but he has not replied. See CIR. R. 51(b). Counsel’s
supporting brief explains the nature of the case and addresses issues that an appeal of
this kind might be expected to involve, and because the analysis appears to be thorough,
we limit our review to the subjects that counsel discusses. 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 Aguirre does not wish to challenge his guilty plea, and
thus the lawyer appropriately does not discuss the voluntariness of the plea or the
adequacy of Aguirre’s plea colloquy. See FED. R. CRIM. P. 11; 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 first questions whether Aguirre could challenge the validity of the
indictment because it is not signed by the foreperson of the grand jury, see FED. R. CRIM.
P. 6(c), or by an attorney for the government, see FED. R. CRIM. P. 7(c)(1). But counsel
rightly concludes that an appellate claim premised on the missing signatures would be
frivolous. By pleading guilty Aguirre waived all nonjurisdictional issues arising before
the plea. See United States v. Adame‐Hernandez, 763 F.3d 818, 828 (7th Cir. 2014); United
States v. Perez, 673 F.3d 667, 670 (7th Cir. 2012). Defects in an indictment, including
failures to comply with Rules 6(c) and 7(c)(1), are not jurisdictional. See United States v.
Cotton, 535 U.S. 625, 629–31 (2002); United States v. Irorere, 228 F.3d 816, 830–31 (7th Cir.
Counsel also considers and correctly rejects a challenge to the district court’s
determination that Aguirre was competent to understand the proceedings and to assist
with his defense. See 18 U.S.C. § 4241. This potential argument relates only to Aguirre’s
sentencing, since the defendant has told counsel that he stands by his guilty plea,
see Konczak, 683 F.3d at 349; Knox, 287 F.3d at 670–71, and there is no suggestion that
Aguirre wasn’t competent when he made that choice. As for Aguirre’s competence to be
sentenced, an appellate claim would be frivolous because three psychologists, including
two chosen by Aguirre, concluded without contradiction that he was competent. Given
the psychologists’ uncontested findings, it would be frivolous to argue that the district
court committed clear error in determining that Aguirre was competent. See United
States v. Moore, 425 F.3d 1061, 1074 (7th Cir. 2005); United States v. O’Neal, 969 F.2d 512,
514 (7th Cir. 1992).
Counsel then evaluates whether Aguirre could argue that the district court
committed significant procedural error at sentencing. In choosing a sentence of 100
moths’ imprisonment—the low end of the guidelines range of 100 to 125 months—the
district court explained that a “very important” factor was the need to protect the public
from Aguirre. The judge said he had “gone through the presentence report” and
observed that “for a long period of time”—since 2003—Aguirre had “endangered other
people,” including during a “bank robbery where he tried to blow heads off of people.”
What the judge was referring to is the probation officer’s statement in the presentence
report that Aguirre had brandished a toy gun and threatened to “blow your heads off” if
the people inside did not follow his orders. The judge later repeated that a guidelines
sentence was “imperative” because of Aguirre’s need for treatment and “the need to
protect people.” Aguirre did not object to the judge’s misstatement about the bank
robbery, so our review would be for plain error. See United States v. Chatman, 805 F.3d
840, 843 (7th Cir. 2015).
We agree with counsel that a claim about the district court’s misstatement would
be frivolous. We could not conclude on this record that the judge really thought, after
reading the presentence report, that Aguirre had “tried” to kill bank employees and
patrons with his toy gun. Instead, the judge’s misstatement was an obvious slip of the
tongue, which explains the absence of an objection from defense counsel. See United
States v. Schmitz, 717 F.3d 536, 543–44 (7th Cir. 2013) (holding that judge’s erroneous
reference to a “fraud scheme” beginning seven years prior to the defendant’s charged
conduct was, in context, “merely an unfortunate slip of the tongue” because numerous
documents, including the parties’ sentencing memoranda and the presentence report,
“indicated to the court that the charged scheme began” at the correct time); United States
v. Soto, 48 F.3d 1415, 1423 (7th Cir. 1995) (affirming defendant’s sentence despite “a mere
human slip of the judge’s tongue” because the district judge “possessed a clear and
direct knowledge of the facts of the case that only a scrupulous review of the original
trial record would produce”). In context, it is apparent that the judge meant to say that
Aguirre had threatened to kill the robbery victims, especially given that the judge was
speaking at the time about the content of the presentence report. That report accurately
characterizes Aguirre’s “gun” as a toy, the same description given by the parties in their
sentencing memoranda. Moreover, when discussing the bank robbery the judge was
focused on Aguirre’s need for psychiatric treatment and his history of criminal conduct
that endangered others, including the assault against the nurse in this case, a burglary
during which Aguirre had threatened to cut the victim with a box cutter, a charge of
disorderly conduct involving death threats, and an assault against a corrections officer
while this case was pending. As counsel points out, the judge’s misstatement did not
affect Aguirre’s offense level or criminal history category, and it’s inconceivable that the
judge selected a low‐end sentence on the understanding that Aguirre had tried to kill
people during the robbery. Because the misstatement did not affect Aguirre’s substantial
rights, counsel is correct that an appellate claim based on that issue would be frivolous.
Counsel lastly weighs an argument that Aguirre’s sentence is substantively
unreasonable. But as counsel recognizes, Aguirre’s within‐guidelines sentence is
presumptively reasonable, see Rita v. United States, 551 U.S. 338, 347 (2007); United States
v. Womack, 732 F.3d 745, 747 (7th Cir. 2013), and counsel identifies nothing that would
rebut that presumption.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.
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