United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 18, 2008

Decided December 30, 2008

Before

WILLIAM J. BAUER, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

DIANE P. WOOD, Circuit Judge

No. 08‐1531

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

JOSE VALLEJO,

Defendant‐Appellant.

Appeal from the United States District

Court for the Northern District

of Illinois, Eastern Division.

No. 02‐CR‐432

David H. Coar,

Judge.

O R D E R

This is the third appeal that defendant Jose Vallejo has brought before this court. As

before, Vallejo would like to challenge the sentence he received for the offense of possessing

a firearm after being convicted of a felony in violation of 18 U.S.C. § 922(g). Initially, the district

court imposed a sentence of 262 months’ imprisonment, three years’ supervised release, a $200

special assessment, and a $2,500 fine. This court affirmed. See United States v. Vallejo, 373 F.3d

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 08‐1531 Page 2

855 (7th Cir. 2004) (Vallejo I). After that decision, while Vallejo’s petition for rehearing was

pending, the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005). Based on

Booker, we vacated Vallejo’s sentence and remanded for resentencing. United States v. Vallejo,

134 F. App’x. 90 (7th Cir. 2005) (Vallejo II). On remand, the district court held a new sentencing

hearing, after which it imposed the same sentence of 262 months. Vallejo appealed again,

claiming among other things that the court mistakenly thought that it could not impose a

sentence below the one recommended by the U.S. Sentencing Guidelines unless Vallejo

rebuttedapresumption ofreasonableness. Findingmeritin that argument, wevacatedVallejo’s

sentence and remanded for resentencing. See 226 F. App’x. 607 (7th Cir. 2007) (Vallejo III).

In between Vallejo’s second sentencing hearing and this court’s decision in Vallejo III,

the government filed a motion under FED. R. CRIM. P. 35, seeking a reduction in Vallejo’s

sentence based on substantial assistance.Thedistrict courttookupthatmotion atthe same time

as the second resentencing hearing. Afterthat hearing, it granted the government’s motion and

reduced Vallejo’s prison term to 190 months. The revised judgment was filed on February 7,

2008, and Vallejo filed a timely notice of appeal.

This time, however, appointed counsel has filed a no‐merit brief in accordance with

Anders v. California, 386 U.S. 738 (1967), seeking leave to withdraw as counsel.  We invited

Vallejo under Circuit Rule 51(b) to comment on his lawyer’s brief, and subsequently granted

Vallejo’s motion for more time, but Vallejo has chosen not to file a response. We therefore

consider only those potential issues identified by counsel. See United States v. Schuh, 289 F.3d

968, 973‐74 (7th Cir. 2002).

The facts underlying Vallejo’s conviction can be found in our opinion in Vallejo I and the

earlier orders in this case. At this point, the only relevant question is whether any argument

challenging Vallejo’s new, lower sentence would be frivolous. Counsel concludes thatit would

be, and we share that assessment. In Vallejo I, this court affirmed the district court’s decision

that Vallejo was an armed career criminal who belonged in offense level 34 and who had a

criminal history category VI. Neither remand permitted reconsideration of those conclusions,

and it would therefore be frivolous for Vallejo to attempt to reopen them at this time.

Only two questions remain: first, whether the district court committed any procedural

errorin its consideration of the Rule 35 motion, and second, whether Vallejo’s revised sentence

of 190 months is unreasonable. Taking the Rule 35 motion first, we are satisfied that no

procedural challenge is possible. After listening to Vallejo’s arguments for a lower sentence,

based on his cooperation and his efforts to turn around his life, the district court responded

with a significant reduction – one of 72 months, far more than the 40‐month reduction the

government had sought. The court acknowledged that it had the authority to impose an even

lower sentence than the 190 months it chose – even one below the otherwise mandatory
No. 08‐1531 Page 3

minimum of 180 months – butthatitthoughtthat anything below 190 months would notreflect

the negatives in Vallejo’s record, including his 12‐day rash of armed robberies when he was 18

years old. As appellate counsel points out, the fact that Vallejo’s trial counsel may have

thought, erroneously, that the district court could not go below 180 months does not create an

appealable issue. First, there is nothing to suggest that the district court was under that

misapprehension, and thus nothing to indicate that it would have selected a lower sentence

than it did. Second, to the extent that this point relates to ineffectiveness of counsel, it is better

raised through a motion under 28 U.S.C. § 2255.

That leaves only the question whether any responsible argument that Vallejo’s 190‐

month sentence was unreasonable could be offered. We agree with appellate counsel that the

answer is no. Vallejo has ended up with a sentence substantially lower than the bottom of his

advisory guidelines range, which was 262 to 327 months, given his armed career criminal

status. The district court offered a satisfactory explanation of its choice of sentence; any

argument that it was unreasonable would be doomed. See Gall v. United States, 128 S.Ct. 586

(2007); Rita v. United States, 127 S.Ct. 2456 (2007).

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