United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted January 20, 2012

Decided January 20, 2012

Before

MICHAEL S. KANNE, Circuit Judge

DIANE S. SYKES, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 11-1106

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSE GUADALUPE NUNEZ-GARCIA,

Defendant-Appellant.

Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 09 CR 455-1

Amy J. St. Eve,

Judge.

O R D E R

Jose Nunez-Garcia was discovered in Illinois in 2009 after having been removed

from the United States four times after incurring a felony drug conviction in 1988. He

pleaded guilty without benefit of a plea agreement to being in the United States illegally

after having been deported. See 8 U.S.C. § 1326(a). After calculating a guidelines

imprisonment range of 77 to 96 months, the district court initially pronounced a prison

sentence of 77 months but then shaved a month off that term, at Nunez-Garcia’s request, to

account for time he spent in immigration custody before being charged in this case. NunezGarcia filed a notice of appeal, but his appointed lawyer has concluded that the appeal is

frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738 (1967). NunezGarcia has not responded to counsel's submission. See CIR. R. 51(b). We confine our review

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 11-1106 Page 2

to the potential issues identified in counsel’s facially adequate brief. See United States v.

Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).

Counsel first considers whether Nunez-Garcia could challenge the adequacy of the

plea colloquy or the voluntariness of his guilty plea. But Nunez-Garcia has given no

indication that he wants his guilty plea set aside, so counsel should have omitted this

discussion. See United States v. Knox, 287 F.3d 667, 670–72 (7th Cir. 2002).

Counsel next evaluates whether Nunez-Garcia could challenge the district court’s

application of the sentencing guidelines. The only concern that Nunez-Garcia raised at

sentencing about the calculation of his guidelines range was whether five of his prior

convictions were too old to count against him under U.S.S.G. § 4A1.2(e) because they were

incurred between 1988 and 1994, long before his illegal presence was discovered. But

raising this concern on appeal would be frivolous. An offense under § 1326(a) begins at the

time of reentry, United States v. Are, 498 F.3d 460, 464 (7th Cir. 2007); United States v.

Lopez-Flores, 275 F.3d 661, 663 (7th Cir. 2001), and Nunez-Garcia’s 14 arrests in Illinois since

his last removal in 1991 corroborate the district court’s finding that he reentered the United

States sufficiently close in time to his challenged convictions for all of them to count under

§ 4A1.2(e). In addition, a challenge to the reasonableness of the prison sentence also would

be frivolous. The district court sentenced Nunez-Garcia below the guidelines range despite

being “particularly troubled” that his four prior removals had not deterred him from

returning to the United States. The sentence is not unreviewable, as counsel asserts, but it is

presumptively reasonable. See United States v. Martinez, 650 F.3d 667, 671 (7th Cir. 2011);

United States v. Berg, 640 F.3d 239, 254 (7th Cir. 2011). There is no indication that the

sentence is unreasonable, and we thus agree with counsel that challenging the sentence

would be frivolous.

We GRANT counsel’s motion to withdraw and DISMISS the appeal.