United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted June 1, 2011

Decided June 1, 2011

Before

FRANK H. EASTERBROOK, Chief Judge

ILANA DIAMOND ROVNER, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 10-2827

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FREDDY CAZARES,

Defendant-Appellant.

Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 08 CR 685-1

Rebecca R. Pallmeyer,

Judge.

O R D E R

Freddy Cazares pleaded guilty to attempting to possess with intent to distribute

cocaine, 21 U.S.C. §§ 841(a)(1), 846, after he tried to buy 25 kilograms to an undercover

informant. The district court sentenced Cazares to 140 months’ imprisonment, within the

guidelines range of 135 to 168 months. Cazares’ appellate counsel has filed a motion to

withdraw under Anders v. California, 386 U.S. 738 (1967), contending that any challenge to

Cazares’ conviction or the reasonableness of his sentence would be frivolous. Cazares has

responded to counsel’s motion, see CIR. R. 51(b). We confine our review to the potential

issues identified in counsel’s facially adequate brief and in Laws’ response. See United States

v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2009).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 10-2827 Page 2

Counsel begins by noting that Cazares does not want his guilty plea vacated and

thus correctly forgoes discussing the voluntariness of the plea or the adequacy of the plea

colloquy. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir. 2002).

Counsel considers challenging the reasonableness of Cazares’ sentence, but properly

concludes that any such challenge would be frivolous. Cazares’ within-guidelines sentence

is presumed reasonable, see Rita v. United States, 551 U.S. 338, 350-51 (2007); United States v.

Vallar, 635 F.3d 271, 279 (7th Cir. 2011), and counsel cannot identify any basis to upset that

presumption nor can we. Moreover counsel cannot identify any error in the court’s

consideration of sentencing factors under 18 U.S.C. § 3553(a). The court acknowledged

Cazares’ history and characteristics, § 3553(a)(1), noting the role that his limited cognitive

abilities may have played in his recidivist behavior, and remarking that Cazares had an

opportunity, while residing at a Salvation Army facility, to improve his life and habits. The

court also stressed the seriousness of the offense, § 3553(a)(2)(A), noting in particular that

the 25 kilograms Cazares tried to sell far exceeded the 5-kilogram amount needed to trigger

the 10-year statutory minimum sentence under § 841(b)(1)(A).

In his Rule 51(b) response, Cazares asserts that the district court improperly rejected

his argument at sentencing that he receive a reduced sentence based on his diminished

mental capacity. See U.S.S.G. § 5K2.13. Section 5K2.13 requires a showing that (1) the

defendant committed the offense while suffering from a significantly reduced mental

capacity; and (2) the significantly reduced mental capacity contributed substantially to the

commission of the offense. See United States v. Portman, 599 F.3d 633, 637 (7th Cir. 2010). A

“significantly reduced mental capacity,” though, means an impaired ability to either

understand the wrongfulness of the relevant conduct or to control behavior. U.S.S.G.

§ 5K2.13 cmt. n. 1; United States v. Anderson, 547 F.3d 831, 831-32 (7th Cir. 2008). The district

court acknowledged that Cazares’ “cognitive defects” may have led him to think that drug

dealing was one of the few avenues available to him to make a living, but nothing in the

record shows that he did not understand his culpability for his actions. At sentencing, in

fact, he conceded that his cognitive defects did not “excuse” his behavior. The district court

then properly declined to reduce his sentence on that basis.

Counsel also asserts that he seeks new counsel because of a breakdown in

communications with his lawyer, but he does not explain why we should appoint a

different lawyer to pursue a frivolous appeal.

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