United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 1, 2007

Decided February 5, 2007

Before

 Hon. RICHARD A. POSNER, Circuit Judge

 Hon. JOEL M. FLAUM, Circuit Judge

 Hon. DANIEL A. MANION, Circuit Judge

No. 06-2063

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LAUREANO CORTEZ-CRUZ,

Defendant-Appellant.

Appeal from the United States District

Court for the Western District of

Wisconsin

No. 05 CR 183

Barbara B. Crabb, 

Chief Judge.

O R D E R

During the fall of 2005, Laureano Cortez-Cruz participated in three cocaine

sales; unbeknownst to him, the supposed buyers were an informant and an

undercover special agent working for the Drug Enforcement Administration. 

Cortez-Cruz and his co-defendant, Santos Lanza, were arrested during the third

transaction, which involved 465 grams of cocaine. Cortez-Cruz quickly entered into

a written plea agreement in which he admitted possessing the cocaine with intent

to distribute in violation of 21 U.S.C. § 841(a)(1); prosecutors agreed to drop the

charges stemming from the first two sales, which involved much smaller quantities. 

He received a three-level downward adjustment for acceptance of responsibility,

and was sentenced to 57 months’ imprisonment, the bottom of the guidelines range.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 06-2063 Page 2

Cortez-Cruz filed a notice of appeal, but his appointed counsel now seeks to

withdraw under Anders v. California, 386 U.S. 738 (1967), because he is unable to

discern a nonfrivolous issue to pursue. Counsel’s supporting brief is facially

adequate, and Cortez-Cruz has responded to our invitation under Circuit Rule 51(b)

to comment on counsel’s submission. We limit our review to the potential issues

identified in counsel’s brief and Cortez-Cruz’s response. See United States v. Schuh,

289 F.3d 968, 974 (7th Cir. 2002).

First, counsel informs us that Cortez-Cruz does not wish to have his guilty

plea vacated “unless the district court would reduce his sentence.” But it is highly

unlikely that setting aside the guilty plea and allowing Cortez-Cruz to start over

would result in a lower sentence; on the contrary, he would risk a longer sentence

because he would lose the three-level reduction for acceptance of responsibility. See

United States v. Knox, 287 F.3d 667, 670 (7th Cir. 2002). In his response to

counsel’s Anders brief, Cortez-Cruz gives no indication that he otherwise wants the

plea vacated, and thus we do not further consider the voluntariness of the plea or

the adequacy of the colloquy. See id. at 670-71.

 The one potential issue that counsel identifies is whether Cortez-Cruz could

argue that he should have received a lower prison sentence. Because the term falls

within the properly calculated guidelines range, it is presumed reasonable, and

counsel says he cannot find any basis to rebut this presumption. See United States

v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Although the Supreme Court

recently granted a writ of certiorari to consider whether it is consistent with United

States v. Booker, 543 U.S. 220 (2005), to afford a presumption of reasonableness to a

sentence within the guidelines range, see United States v. Rita, No. 05-4674, 2006

WL 1144508 (4th Cir. May 1, 2006), cert. granted, 127 S. Ct. 551 (U.S. Nov. 3, 2006)

(No. 06-5754), the resolution of that question would not affect our conclusion that

any challenge to the 57-month term imposed in this case would be frivolous. The

district court considered the relevant factors under 18 U.S.C. § 3553(a) and

identified those having a significant effect on the choice of sentence, see United

States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005). The court evaluated CortezCruz’s background, his family situation and work history, the seriousness of his

crime, and the need to protect the public. The court found that none of the factors

justified a sentence below the guidelines imprisonment range, but it imposed the

lowest possible term within the range because the total quantity of cocaine for

which Cortez-Cruz was responsible—551 grams—was near the bottom of the span

that determined his base offense level. See U.S.S.G. 2D1.1(c)(7) (establishing base

offense level of 26 for possession of more than 500 grams but less than two

kilograms of cocaine). We thus agree with counsel that it would be frivolous for

Cortez-Crus to argue that his sentence is unreasonable.
No. 06-2063 Page 3

For his part, Cortez-Cruz proposes to argue that “agents and the prosecutor”

promised him a “sentencing modification” in return for assistance he says he

provided after he was sentenced in an investigation of persons supplying illegal

“license[s] and documentation.” Under Federal Rule of Criminal Procedure 35(b),

the government may seek a reduction in sentence within one year of sentencing, but

to date no such motion has been filed in the district court, and the deadline for

Cortez-Cruz—who was sentenced on March 31, 2006—is rapidly approaching. Of

course, it would be frivolous for Cortez-Cruz to press this issue on direct appeal

because we would be unable to evaluate the merits of his assertions regarding

events that transpired after he was sentenced. If Cortez-Cruz wishes to pursue this

argument, he may file in the district court a post-judgment motion to compel the

government to file a Rule 35(b) motion on his behalf. Cf. United States v. Wilson,

390 F.3d 1003, 1004 (7th Cir. 2004). 

Counsel's motion to withdraw is GRANTED, and the appeal is DISMISSED.