# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 3, 2010

Decided February 5, 2010

Before

KENNETH F. RIPPLE, Circuit Judge

TERENCE T. EVANS, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 09

‐ 1354

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

JULIO R. ARIAS,

Defendant

‐ Appellant. Appeal from the United States District

Court for the Eastern District of Wisconsin.

No. 08

‐ CR

‐ 69

Charles N. Clevert, Jr.,

Chief Judge

.

O R D E R

Julio Arias pleaded guilty to a superceding indictment charging him with conspiracy

to possess marijuana with intent to distribute. See 21 U.S.C. §§ 846, 841(a)(1). In exchange

for his guilty plea, the government dismissed an indictment charging Arias with possessing

enough crack to dictate a 5

‐ year statutory minimum, see 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii),

as well as with carrying a gun during that offense, which would have triggered another,

consecutive 5

‐ year term, see 18 U.S.C. § 924(c)(1)(A)(i). Arias was sentenced on the

marijuana conspiracy to 60 months’ imprisonment and 5 years’ supervised release. He NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 09

‐ 1354 Page 2

appeals, but his appointed lawyers have concluded that the case is frivolous and move to

withdraw. See Anders v. California

, 386 U.S. 738 (1967). We invited Arias to comment on

counsel’s submission but received no response. See C IR

. R. 51(b). Our review is confined to

the potential issues outlined in counsel ʹ s facially adequate brief. See United States v. Schuh

,

289 F.3d 968, 973

‐ 74 (7th Cir. 2002).

Counsel inform us that Arias does not wish to challenge his guilty plea, and thus

they properly refrain from discussing possible arguments about the voluntariness of the

plea or the adequacy of the plea colloquy. See United States v. Knox

, 287 F.3d 667, 671

‐ 72 (7th

Cir. 2002). According to counsel, that leaves only one potential ground for appeal: whether

Arias could challenge the reasonableness of his prison and supervised release terms.

In the presentence investigation report, the probation officer applied a base offense

level of 24 after calculating a total of 125 kilograms of marijuana equivalent (derived from

the 45 kilograms of marijuana Arias confessed to distributing as well as the 8 grams of crack

cocaine seized at the time of his arrest). See U.S.S.G. § 2D1.1(c)(8), cmt. n.10(D). The

probation officer added 2 levels for possession of a dangerous weapon in the course of a

trafficking offense, see id. § 2D1.1(b)(1), and subtracted 3 levels for acceptance of

responsibility, see id. § 3E1.1, for a total offense level of 23. The probation officer also

calculated 6 criminal history points, which corresponds to a criminal history category of III.

This computation produced a guidelines imprisonment range of 57 to 71 months, which,

because the amount of marijuana was under 50 kilograms, was capped by the statutory

maximum of 5 years, see 21 U.S.C. § 841(b)(1)(D). And although the probation officer

incorrectly listed the guidelines range for supervised release as 2 years to life, the district

court caught the mistake and accurately stated the range to be from 2 to 3 years. See 18

U.S.C. § 3559(a)(4); 21 U.S.C. § 841(b)(1)(D); U.S.S.G. § 5D1.2.

At sentencing Arias asked the district court to impose a below

‐ guidelines prison

sentence, citing his troubled childhood, the positive influence and support of his current

girlfriend, and the fact that he admitted the marijuana trafficking to authorities. Counsel

argued that 30 months would be enough. The district court disagreed. The court observed

that Arias, who was 21 at the time of sentencing, already had established a pattern of

recidivism and had admitted his marijuana trafficking only after he was indicted on the

more

‐ serious crack and gun charges. As the court noted, the government’s decision to

allow Arias to plead guilty to the marijuana conspiracy reduced his prison time

substantially. Having considered counsel’s arguments, the court concluded that a prison

term within the guidelines range would give Arias the more structured environment he

needed and that a longer term of supervised release would assist his reentry to society. As a

result, the court sentenced Arias to the statutory maximum of 60 months, near the bottom of

the guidelines range, and 5 years of supervised release, above the properly calculated range.No. 09

‐ 1354 Page 3

We agree with counsel that a reasonableness challenge to Arias’ sentence would be

frivolous. Arias did not object to any portion of the presentence report, and, in any event,

the report contains no error that was not identified and corrected at sentencing. When

reviewing a sentence for reasonableness, we first determine whether the district court

properly calculated the guidelines range, fairly evaluated all nonfrivolous arguments

concerning the sentencing factors in 18 U.S.C. § 3553(a), and offered a sufficient explanation

for the sentence imposed to permit meaningful appellate review. See Gall v. United States

,

552 U.S. 38, 49

‐ 50 (2007); United States v. Cooper

, 591 F.3d 582, 590 (7th Cir. 2010). If there

was no procedural shortcoming, then we examine whether the sentence is substantively

reasonable. See Cooper

, 591 F.3d at 590; United States v. Clanton

, 538 F.3d 652, 659 (7th Cir.

2008). The sentencing transcript shows that the district court permitted both Arias and the

government to argue their positions at sentencing. And the transcript also shows that the

court adequately considered both Arias’ arguments and the § 3553(a) factors, including the

seriousness of the offense, Arias’ characteristics and personal history, his chances for

rehabilitation, and the need to protect the public from further offenses. See United States v.

Mendoza

, 576 F.3d 711, 722 (7th Cir. 2009); United States v. Laufle

, 433 F.3d 981, 987 (7th Cir.

2006). We presume that Arias’ prison term is reasonable since it falls within the guidelines

range, see United States v. Welton

, 583 F.3d 494, 496 (7th Cir. 2009); United States v. Noel

, 581

F.3d 490, 500 (7th Cir. 2009), and counsel has identified nothing to rebut this presumption.

And while the district court imposed an above

‐ guidelines term of supervised release, it

clearly articulated its reasons and grounded them in the § 3553(a) factors, imposing a longer

term to assist Arias’ reentry to society and help him avoid recidivism. Even so, the court

admonished Arias that, if he maintains an exemplary record following his release from

prison, he could petition the court to shorten his term of supervision. See 18 U.S.C.

§ 3583(e)(1).

Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.