United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 28, 2012

Decided March 28, 2012

Before

FRANK H. EASTERBROOK, Chief Judge

RICHARD A. POSNER, Circuit Judge

DIANE S. SYKES, Circuit Judge

   

No. 11‐2569

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

ADOLFO NAVARRETE‐LEYVA,

Defendant‐Appellant.                 

Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 10 CR 288‐1

Amy J. St. Eve,

Judge.

O R D E R

Adolfo Navarrete‐Leyva, a Mexican citizen, pleaded guilty to being present in the

United States unlawfully after having been removed, see 8 U.S.C. § 1326(a). The district

court sentenced him to 51 months’ imprisonment, the bottom of his guidelines range. He

filed a notice of appeal, but his appointed lawyer believes that the appeal is frivolous and

seeks to withdraw under Anders v. California, 386 U.S. 738, 744 (1967). Navarrete‐Leyva has

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

issues raised in counsel’s facially adequate brief and Navarrete‐Leyva’s Rule 51(b) response.

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

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 11‐2569 Page 2

Counsel advises that Navarrete‐Leyva does not wish to challenge his guilty plea, and

thus the lawyer appropriately omits discussion about the adequacy of the plea colloquy and

the voluntariness of the guilty plea. See United States v. Knox, 287 F.3d 667, 670–72 (7th Cir.

2002).

Navarrete‐Leyva first asks whether he could challenge the district court’s guidelines

calculations. Even though he did not object to the court’s adoption of a 51 to 63 month range

based on an offense level of 22 and category III criminal history, Navarrete‐Leyva now

argues that the court should have decreased his offense level by three rather than two under

U.S.S.G. § 3E1.1 because he timely accepted responsibility. But this argument would be

frivolous because the government did not exercise its discretion to file a motion seeking the

decrease—a necessary precondition, id. § 3E1.1(b); United States v. Deberry, 576 F.3d 708, 710

(7th Cir. 2009).

Counsel and Navarrete‐Leyva both consider whether he might challenge the

reasonableness of his sentence, but neither has identified any reason to disturb the

presumption of reasonableness applicable to Navarrete‐Leyva’s within‐guidelines sentence.

See Rita v. United States, 551 U.S. 338, 350–51 (2007); United States v. Moreno‐Padilla, 602 F.3d

802, 810 (7th Cir. 2010). The district court adequately discussed the relevant sentencing

factors under 18 U.S.C. § 3553(a), noting that Navarrete‐Leyva had twice returned

unlawfully after being removed and was likely to do so again. The court considered the

arguments offered in mitigation by Navarrete‐Leyva, including the absence of a “fast‐track”

program in his district, his assimilation into American culture, and his fear of retribution by

drug cartels back home, but emphasized that these factors were outweighed by his

“serious” criminal past and the need to deter him from returning to the United States and

repeating his crimes. We would not conclude that the court abused its discretion in making

that assessment.

To the extent that Navarrete‐Leyva asserts that counsel was ineffective throughout

the proceedings in the district court, a claim of ineffective assistance is best saved for

collateral review, where a complete record can be developed. See Massaro v. United States,

538 U.S. 500, 504–05 (2003); United States v. Persfull, 660 F.3d 286, 299 (7th Cir. 2011).

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