USA v. Francisco Narvaez
Filed Nonprecedential Disposition PER CURIAM. Counsel's motion to withdraw is GRANTED and Narvaez's appeal is DISMISSED. Frank H. Easterbrook, Circuit Judge; Daniel A. Manion, Circuit Judge and Ilana Diamond Rovner, Circuit Judge. [6885151-2] [6855350-2] [6888086-1]  [17-2203]
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 November 20, 2017
Decided December 5, 2017
FRANK H. EASTERBROOK, Circuit Judge
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
UNITED STATES OF AMERICA,
Appeal from the United States
District Court for the Northern District
of Illinois, Eastern Division.
John J. Tharp, Jr.,
O R D E R
This is second time Francisco Narvaez has appealed. His first appeal occurred
after a jury found him guilty of conspiring to possess with the intent to distribute
cocaine, see 21 U.S.C. §§ 846, 841(a)(1), using a telephone to sell cocaine, see id. § 843(b),
and distributing cocaine, see id. § 841(a)(1); 18 U.S.C. § 2, for which he was sentenced to
72 months in prison. In the first appeal he argued only that the district court had
miscalculated his guidelines range by assigning a criminal‐history point for a conviction
under a state law that was later ruled to be unconstitutional. We agreed, so we vacated
the judgment and remanded the case for resentencing. United States v. Narvaez,
679 F. Appʹx 469 (7th Cir. 2017). On remand the district court again sentenced Narvaez
to 72 months’ imprisonment (and 4 years’ supervised release).
On his second trip to our court, Narvaez’s appointed counsel asserts that the
appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738
(1967). Narvaez opposes counsel’s motion. See CIR. R. 51(b). Counsel’s brief explains the
nature of the case and addresses potential issues that this kind of appeal might involve.
Because counsel’s analysis appears to us thorough, we limit our review to the subjects
counsel covers as well as the additional issues that Narvaez, disagreeing with counsel,
believes have merit. 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 first considers whether Narvaez might challenge any aspect of his jury
trial. But he waived any such challenges by not raising them in his first appeal, so
raising them now would be frivolous. See United States v. Adams, 746 F.3d 734, 744
(7th Cir. 2014); United States v. Husband, 312 F.3d 247, 250 (7th Cir. 2002).
Next counsel considers whether Narvaez could again challenge his sentence, but
properly determines an appellate attack would be pointless. First, Narvaez could not
reasonably attack the calculation of the guidelines range. The district court recalculated
Narvaez’s guidelines range without including in his criminal history the invalidated
conviction. Narvaez agreed that the computed range of 63 to 78 months in prison was
correct, so he waived any potential objection to it. See United States v. Burns, 843 F.3d 679,
685–86 (7th Cir. 2016); United States v. Brodie, 507 F.3d 527, 531–32 (7th Cir. 2007). Second,
a challenge to the reasonableness of his 72‐month prison sentence would be frivolous.
We presume that this within‐guidelines sentence is reasonable, see Rita v. United States,
551 U.S. 338, 351 (2007); United States v. Gries, 872 F.3d 471, 476 (7th Cir. 2017), and the
record gives Narvaez no basis to challenge that presumption. The court discussed and
reasonably weighed the relevant 18 U.S.C. § 3553(a) factors, including the seriousness of
Narvaez’s drug crimes. The court also emphasized that Narvaez, who absconded and
continued to deny responsibility even after his trial, should receive a harsher sentence
than his codefendant. The codefendant received the statutory minimum of 60 months
because he had pleaded guilty, had no criminal history, and did not abscond. Last, the
court explained that it imposed the 72 months’ imprisonment again because the prior
miscalculation had played no role in the original sentence; instead, the court said, the
sentence was driven by Narvaez’s continued drug trafficking despite his previous,
more lenient sentences for previous crimes.
Finally, we briefly address Narvaez’s filings, which consist of his Rule 51(b)
response to counsel’s motion to withdraw and Narvaez’s two motions asking for a
different judge to review his case if we remand again. In one of his motion, he contends
that the district judge “collaborated” with the attorneys and was biased against him.
But he gives no specifics, and the record reveals no evidence to support this contention.
His Rule 51(b) response repeats these assertions, again without record support, and
adds that the judgment violated Federal Rules of Civil Procedure 58 and 79(a), which do
not apply to a criminal case. Last, he asserts that the proceedings reflected racial bias and
his lawyers were ineffective. Again, the record does not support these arguments. And
the proper place to present out‐of‐record information, if it exists, that supports
contentions like these would be a collateral attack, not a direct appeal. See Vinyard v.
United States, 804 F.3d 1218, 1227 (7th Cir. 2015); United States v. Bryant, 754 F.3d 443, 444
(7th Cir. 2014). We, therefore, would not address Narvaez’s claim of counsel’s
ineffectiveness or racial bias in his direct appeal.1
Accordingly, we DENY Narvaez’s pending motions for a new sentencing judge,
GRANT counsel’s motion to withdraw, and DISMISS Narvaez’s appeal.
1 In his second motion asking for a different judge, Narvaez argues that it would
be unfair for the same judge who oversaw his trial and resentenced him to re‐review his
case on remand. But because we are dismissing his case, not remanding it, this
argument is moot.
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