United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 11, 2006

Decided May 11, 2006

Before

 Hon. WILLIAM J. BAUER, Circuit Judge

 Hon. JOHN L. COFFEY, Circuit Judge

 Hon. MICHAEL S. KANNE, Circuit Judge

No. 05-4159

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JUAN ORNELAS-HERNANDEZ,

Defendant-Appellant.

Appeal from the United States District

Court for the Eastern District of

Wisconsin

No. 04-CR-195

Charles N. Clevert, Jr., 

Judge.

O R D E R

Juan Ornelas-Hernandez pleaded guilty to one count of cocaine distribution,

21 U.S.C. § 841(a)(1). He asked the district court to impose a sentence below the

guidelines range of 57 to 71 months in prison, arguing that his placement in

Criminal History Category III overstated the seriousness of his single past offense. 

See U.S.S.G. § 4A.1.3(b)(1). The sentencing court imposed the statutory mandatory

minimum sentence of 60 months’ incarceration. 21 U.S.C. § 841(b)(1)(A). OrnelasHernandez filed a timely notice of appeal, but his appointed counsel informs us that

he cannot discern a nonfrivolous basis for the appeal and moves to withdraw. See

Anders v. California, 386 U.S. 738 (1967). Because counsel’s brief is facially

adequate and Ornelas-Hernandez has not filed a Circuit Rule 51(b) response to his

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 05-4159 Page 2

attorney’s motion, we will review only the potential issues that counsel has

identified. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997).

We have no indication that Ornelas-Hernandez wishes to have his guilty plea

vacated, so counsel appropriately avoids any discussion about the voluntariness of

the plea or the adequacy of the colloquy. See United States v. Knox, 287 F.3d 667,

670-71 (7th Cir. 2002). Counsel considers only an argument that the district court

erred by not granting a sentence below the 60-month mandatory minimum. Such

an argument would be frivolous, counsel concludes, because Ornelas-Hernandez did

not qualify for either of the provisions that would otherwise allow for a belowminimum sentence. See 18 U.S.C. § 3553(e), (f)(1). We concur. Those are the only

provisions that allow district courts to impose a sentence below a statutory

minimum. United States v. Simpson, 337 F.3d 905, 909 (7th Cir. 2003). A

sentencing reduction under § 3553(e) is only possible upon the government’s motion,

which it did not make here. See United States v. McMutuary, 217 F.3d 477, 487

(7th Cir. 2000). And despite his contention before the sentencing court that his

criminal history score overstates the seriousness of his past conviction, it would be

frivolous to argue on appeal that Ornelas-Hernandez was eligible for the safetyvalve provision of § 3553(f). That is because “the statutory question is how many

points the defendant had accumulated, not how serious the crimes were.” United

States v. Cannon, 429 F.3d 1158, 1161 (7th Cir. 2005). Counsel also recognizes that

United States v. Booker, 543 U.S. 220 (2005), has not given district courts authority

to impose sentences below a statutory minimum. See United States v. Lee, 399 F.3d

864, 866 (7th Cir. 2005). We agree with counsel that it would be frivolous to appeal

based on any of the potential issues he identifies. 

We GRANT the motion to withdraw and DISMISS this appeal.