USA v. Cipriano Munoz-Pelayo, No. 11-1765 (7th Cir. 2011)
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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted November 1, 2011 Decided November 3, 2011 Before DIANE P. WOOD, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge JOHN DANIEL TINDER, Circuit Judge No. 11 1765 UNITED STATES OF AMERICA, Plaintiff Appellee, Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. v. No. 10 CR 732 1 CIPRIANO MUNOZ PELAYO, Defendant Appellant. Amy J. St. Eve, Judge. O R D E R After three prior illegal reentries and two prior removals, Cipriano Munoz Pelayo illegally reentered the United States again some time after he was removed in 2007. He came to the attention of Immigration and Customs Enforcement officials after being arrested for drug possession in 2010. He later pleaded guilty to illegally reentering the United States, see 8 U.S.C. § 1326(a), and was sentenced to 48 months imprisonment, 9 months below the bottom of the guidelines range. Munoz Pelayo filed a notice of appeal, but his appointed lawyer has concluded that the appeal is frivolous and seeks permission to withdraw. See Anders v. California, 386 U.S. 738 (1967). Munoz Pelayo has not filed a response opposing counsel s motion. See CIR. R. No. 11 1765 Page 2 51(b). We limit our review to the potential issue identified in counsel s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973 74 (7th Cir. 2002). Counsel represents that Munoz Pelayo does not want his guilty plea vacated and so appropriately omits discussing the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670 71 (7th Cir. 2002). Munoz Pelayo s counsel does consider whether Munoz Pelayo could challenge his sentence, but properly concludes that any such challenge would be frivolous. As counsel notes, we presume that a below guidelines sentence is reasonable, see Rita v. United States, 551 U.S. 338, 347 56 (2007); United States v. Berg, 640 F.3d 239, 255 (7th Cir. 2011), and counsel cannot identify any reason to disregard that presumption. The court also appropriately applied the 18 U.S.C. 3553(a) factors, discussing Munoz Pelayo s criminal history and the seriousness of his repeated attempts to live illegally in the United States. Counsel s motion to withdraw is GRANTED and the appeal is DISMISSED.
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