United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 4, 2013

Decided November 4, 2013

Before

FRANK H. EASTERBROOK, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 12‐3931

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

JOSE S. ESPINOZA,

Defendant‐Appellant.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 12‐CR‐104‐BBC‐01

Barbara B. Crabb,

Judge.

O R D E R

Jose Espinoza pleaded guilty to attempting to possess with intent to distribute

cocaine. See 21 U.S.C. §§ 846, 841(a)(1). The district court sentenced him to 78 months’

imprisonment, within the guidelines imprisonment range of 70 to 87 months. He filed a

notice of appeal, but his appointed lawyer asserts that the appeal is frivolous and moves

to withdraw under Anders v. California, 386 U.S. 738 (1967). Espinoza has not responded

to counselʹs motion. See CIR. R. 51(b). We limit our review to the potential issues

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 12‐3931 Page 2

identified in counselʹs facially adequate brief. See United States v. Schuh, 289 F.3d 968,

973–74 (7th Cir. 2002).

Counsel first informs us that Espinoza does not want to challenge his guilty plea.

Thus the lawyer appropriately omits discussion about the plea colloquy and the

voluntariness of Espinozaʹs plea. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir.

2012); United States v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002).

Counsel does evaluate whether Espinoza could challenge the district court’s

finding that his relevant conduct involved 5.25 kilograms of cocaine. As to four of those

kilograms, Espinoza admitted only to negotiating their purchase for a later date, and a

district court may consider negotiated quantities of undelivered drugs only if the

defendant was “reasonably capable” of purchasing the drugs. See U.S.S.G. § 2D1.1, cmt.

n.12 (2011); United States v. Vaughn, 585 F.3d 1024, 1032 (7th Cir. 2009). Given Espinoza’s

limited financial resources, counsel considers whether the court properly held him

accountable for a negotiated drug amount that he purportedly could not afford. But

Espinoza waived any such argument on appeal when he decided at sentencing to

withdraw his objection to the four‐kilogram quantity (in order to prevent any

inconsistency with the proffer statements he made to cooperate fully with the

government, satisfy the “safety valve” requirements of U.S.S.G. § 5C1.2(a), and obtain a

two‐level reduction under U.S.S.G. § 2D1.1(b)(16)). See United States v. Brodie, 507 F.3d

527, 530–32 (7th Cir. 2007); United States v. Staples, 202 F.3d 992, 995 (7th Cir. 2000).

Counsel also addresses whether Espinoza could challenge his 78‐month prison

term as unreasonable. But the within‐guidelines sentence is presumed reasonable,

see Rita v. United States, 551 U.S. 338, 350–51 (2007); United States v. Aslan, 644 F.3d 526,

531–32 (7th Cir. 2011), and we agree with counsel that the record presents no basis to set

that presumption aside. The district court adequately addressed the sentencing factors

in 18 U.S.C. § 3553(a), noting Espinoza’s clean criminal record and struggles with

substance abuse, id. § 3553(a)(1), but emphasizing the need to protect the community

from drug crimes, id. § 3553(a)(2)(C), and hold Espinoza accountable for his actions, id.

§ 3553(a)(2)(A).  

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