United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted October 17, 2007

Decided October 18, 2007

Before

Hon. FRANK H. EASTERBROOK, Chief Judge

 Hon. DANIEL A. MANION, Circuit Judge

Hon. MICHAEL S. KANNE, Circuit Judge

No. 07-2050

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALFONSO DIAZ,

Defendant-Appellant.

Appeal from the United States 

District Court for the 

Eastern District of Wisconsin

No. 06-CR-306

J. P. Stadtmueller,

Judge.

O R D E R

Alfonso Diaz, a Mexican citizen, pleaded guilty to being in the United States

without permission after he was deported following a conviction for an aggravated

felony. 8 U.S.C. § 1326(a), (b)(2). The district court determined that Diaz’s prior

conviction was for a crime of violence, sexual abuse of a minor, and calculated a

guidelines imprisonment range of 46 to 57 months. The court sentenced Diaz to 46

months’ imprisonment and three years’ supervised release. Diaz filed a timely

notice of appeal, but his appointed counsel now moves to withdraw because he

cannot discern a nonfrivolous basis for appeal. See Anders v. California, 386 U.S.

738, 744 (1967). We invited Diaz to respond to counsel’s brief, see Cir. R. 51(b), but

he has not responded. We therefore limit our review to the potential issues

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance 

with Fed. R. App. P. 32.1
No. 07-2050 Page 2

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 Diaz could challenge his sentence as

unreasonable. Counsel advises, however, that the district court properly calculated

Diaz’s guidelines range, considered the factors set forth in 18 U.S.C. § 3553(a), and

addressed and rejected Diaz’s mitigating arguments, United States v. Laufle, 433

F.3d 981, 987-88 (7th Cir. 2006), before imposing a sentence at the bottom of the

resulting guidelines range. The district court noted that it had in the past ordered

below-guidelines sentences due to sentencing disparities resulting from the lack of a

“fast-track” program in the Eastern District of Wisconsin, but those sentences had

been overturned. Recognizing that the absence of a “fast-track” program was not a

proper basis for imposing a below-guidelines sentence, the court found that no

factor under 18 U.S.C. § 3553(a) justified a below-guidelines sentence. Instead, the

district court found that illegal immigration is “a very significant problem” and

that, to deter illegal immigrants, Diaz would “have to go to jail.” See 18 U.S.C.

§ 3553(a)(1), (2)(A), (2)(B). Counsel notes that this court accords sentences within

the properly calculated guidelines range a rebuttable presumption of

reasonableness. United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). The

Supreme Court recently upheld the use of such a rebuttable presumption, see Rita

v. United States, 127 S. Ct. 2456, 2463 (2007); United States v. Sachsenmaier, 491

F.3d 680, 685 (7th Cir. 2007), and we agree with counsel that any potential

challenge to the reasonableness of Diaz’s sentence would be frivolous.

Counsel next considers whether Diaz could argue that the lack of a “fasttrack” program in the Eastern District of Wisconsin subjected him to an

unwarranted sentencing disparity as compared to sentences of defendants in

districts with a “fast-track” program. But counsel correctly notes that we have

repeatedly held that the absence of a “fast-track” program in the sentencing district

does not make a within-guidelines sentence unreasonable. United States v. RocheMartinez, 467 F.3d 591, 595-96 (7th Cir. 2006); United States v.

Rodriguez-Rodriguez, 453 F.3d 458, 462-463 (7th Cir. 2006); United States v.

Galicia-Cardenas, 443 F.3d 553, 555 (7th Cir. 2006). Thus, we agree with counsel

that this potential argument would be frivolous.

Accordingly, counsel’s motion to withdraw is GRANTED, and the appeal is

DISMISSED.