United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 20, 2012

Decided December 20, 2012

Before

WILLIAM J. BAUER, Circuit Judge

JOEL M. FLAUM, Circuit Judge

KENNETH F. RIPPLE, Circuit Judge

No. 11-3856

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MANUEL SALVADOR

CONTRERAS-DEL TORO,

Defendant-Appellant.

Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 11 cr 238-1

William J. Hibbler,

Judge.

O R D E R

Manuel Contreras-Del Toro was removed from the United States in 2001 after

serving five years in federal prison for conspiracy to possess cocaine and marijuana with

intent to distribute. He was still on supervised release for that crime when he reentered the

country unlawfully a year later. Authorities arrested him during a traffic stop in 2011 after

he produced a phony driver’s license with an alias. Contreras pleaded guilty to

unauthorized presence in the United States after removal, see 18 U.S.C. § 1326(a), and was

sentenced to 60 months in prison, well below the guidelines range of 70 to 87 months.

Contreras filed a notice of appeal, but his newly appointed counsel has concluded

that the appeal is frivolous and seeks to withdraw. See Anders v. California, 386 U.S. 738

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 11-3856 Page 2

(1967). Contreras has not responded to his lawyer’s submission. See CIR. R. 51(b). We

confine our review to the potential issues discussed in counsel’s facially adequate brief.

See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2004). Contreras has informed

counsel that he does not seek to have his guilty plea set aside, so counsel properly forgoes

discussing the adequacy of the plea colloquy or the voluntariness of the plea. See United

States v. Knox, 287 F.3d 667, 672 (7th Cir. 2002).

Counsel first considers whether Contreras could argue that the district court

miscalculated his guidelines range. In the district court, Contreras objected to the probation

officer’s proposed guidelines calculations on two grounds; we agree with counsel that an

appellate challenge on either ground would be frivolous. First, Contreras argued that his

federal drug conviction and an Illinois conviction for possession of a firearm by a felon

should not count separately in assessing criminal-history points since his prison terms for

those offenses ran concurrently. But concurrent sentences do not affect how convictions are

scored, and prior convictions always count separately if, as here, the crimes were separated

by an intervening arrest. See U.S.S.G. § 4A1.2(a)(2); United States v. Statham, 581 F.3d 548,

555 (7th Cir. 2009); United States v. Graves, 418 F.3d 739, 745 (7th Cir. 2005). Second,

Contreras maintained that criminal-history points should not be added for committing the

§ 1326(a) offense while on supervised release because, he argued, his removal deprived the

district court of “jurisdiction to impose” supervised release. This contention makes no

sense if taken literally, since the term of supervised release was imposed when Contreras

was sentenced in federal court in 1997, not when he was removed from the United States in

2001. He must have been arguing instead that removal effectively terminates supervised

release, but that understanding is not correct. See United States v. Garcia-Garcia, 633 F.3d 608,

612 (7th Cir. 2011); United States v. Akinyemi, 108 F.3d 777, 779–80 (7th Cir. 1997).

Counsel also considers whether Contreras could challenge the reasonableness of his

prison sentence. The lawyer has not identified any reason, however, to set aside the

presumption of reasonableness applicable to sentences below the guidelines range. See

United States v. Curtis, 645 F.3d 937, 943 (7th Cir. 2011); United States v. Liddell, 543 F.3d 877,

885 (7th Cir. 2008). Before imposing sentence the district court looked to 18 U.S.C. § 3553(a)

and mentioned the likely effect of incarceration on Contreras’s children and his assertion

that he mostly had obeyed the law since returning to the United States. Yet the court

concluded that 60 months’ imprisonment was necessary to deter Contreras from a further

violation of § 1326(a). Thus any challenge to the reasonableness of Contreras’ sentence

would be frivolous.

The motion to withdraw is GRANTED, and the appeal is DISMISSED.