Filed: Apr. 19, 2012
Latest Update: Mar. 26, 2017
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 April 11, 2012 Decided April 19, 2012 Before JOEL M. FLAUM, Circuit Judge DIANE P. WOOD, Circuit Judge JOHN DANIEL TINDER, Circuit Judge No. 11-2251 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Western District of Wisconsin. v. No. 09-CR-62-BBC-02 FRANCISCO URESTI, Barbar
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 April 11, 2012 Decided April 19, 2012 Before JOEL M. FLAUM, Circuit Judge DIANE P. WOOD, Circuit Judge JOHN DANIEL TINDER, Circuit Judge No. 11-2251 UNITED STATES OF AMERICA, Appeal from the United States District Plaintiff-Appellee, Court for the Western District of Wisconsin. v. No. 09-CR-62-BBC-02 FRANCISCO URESTI, Barbara..
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NONPRECEDENTIAL DISPOSITION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 April 11, 2012
Decided April 19, 2012
Before
JOEL M. FLAUM, Circuit Judge
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 11‐2251
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of Wisconsin.
v. No. 09‐CR‐62‐BBC‐02
FRANCISCO URESTI, Barbara B. Crabb,
Defendant‐Appellant. Judge.
O R D E R
Francisco Uresti pleaded guilty to conspiring to sell cocaine. See 21 U.S.C. §§ 846,
841(a)(1). The district judge sentenced Uresti as a career offender. See U.S.S.G. § 4B1.1. The
judge also added two offense levels for obstruction of justice, see id. § 3C1.1, and declined to
award any points for acceptance of responsibility, see id. § 3E1.1, because Uresti had fled to
Texas after learning that he had been charged with the crime. The judge calculated a
guidelines imprisonment range of 360 months to life but sentenced Uresti below that range,
to 240 months, because of his serious injuries from a snowmobile accident. Uresti filed a
notice of appeal, but his appointed lawyer now seeks to withdraw because she believes the
appeal would be frivolous. See Anders v. California, 386 U.S. 738 (1967). Uresti opposes this
motion and requests the appointment of new counsel. See CIR. R. 51(b). We confine our
review to the potential issues identified in counsel’s facially adequate brief and in Uresti’s
response. United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
No. 11‐2251 Page 2
Uresti does not want his guilty plea set aside. Counsel thus appropriately omits from
her brief any discussion about the adequacy of the plea colloquy or the voluntariness of the
guilty plea. See United States v. Knox, 287 F.3d 667, 671–72 (7th Cir. 2002).
Counsel first considers whether Uresti could argue that the career‐offender guideline
was misapplied but correctly rejects this potential argument as frivolous. At sentencing
Uresti disputed that his Illinois conviction for aggravated discharge of a firearm, see 720
ILCS 5/24‐1.2(a)(2), could count as a crime of violence supporting the career‐offender
designation. See U.S.S.G. § 4B1.2(a) & cmt. n.1. Uresti explained that he was held
accountable “for the conduct of another and not as being the actual perpetrator of a violent
act.” (Uresti drove as his brother fired a gun out the window of their truck and shot the
motorist that they were chasing several times in the back.) Yet district courts must employ a
categorical approach and look to the elements of the crime of conviction rather than the
underlying conduct, see United States v. Thigpen, 456 F.3d 766, 770 (7th Cir. 2006); United
States v. Lewis, 405 F.3d 511, 513–14 (7th Cir. 2005), and we have determined that the Illinois
crime of aggravated discharge of a firearm under 720 ILCS 5/24‐1.2(a)(2) is a crime of
violence for purposes of the career‐offender guideline, see United States v. Curtis, 645 F.3d
937, 941 (7th Cir. 2011).
Counsel next considers whether Uresti could dispute the district judge’s refusal to
award any reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1. The judge found
that Uresti obstructed justice, see id. § 3C1.1, because he fled Illinois after his lawyer advised
him that federal prosecutors had charged him and that he should surrender himself for
arrest. We have held that “calculated evasion” of arrest can support the increase for
obstruction of justice, see United States v. Arceo, 535 F.3d 679, 687 (7th Cir. 2008); United States
v. Porter, 145 F.3d 897, 903–04 (7th Cir. 1998), and even though the government agreed with
Uresti that he should receive a downward adjustment for acceptance of responsibility, the
district court concluded that Uresti’s case did not present extraordinary circumstances
warranting application of a § 3E1.1 reduction despite his obstructive conduct. See U.S.S.G.
§ 3E1.1 cmt. n.4. We agree with counsel that an appellate claim challenging this finding as
clearly erroneous, see United States v. Black, 636 F.3d 893, 900 (7th Cir. 2011), would be
frivolous. When a sentencing court properly finds that the defendant obstructed justice,
only a showing of exceptional circumstances will overcome the resulting presumption that
the defendant had not accepted responsibility. United States v. DeLeon, 603 F.3d 397, 408 (7th
Cir. 2010); United States v. Gonzalez‐Mendoza, 584 F.3d 726, 730–31 (7th Cir. 2009). Counsel is
unable to identify any such circumstances.
In his Rule 51(b) response, Uresti proposes to contest the finding that he obstructed
justice. He did not obstruct justice “willfully,” Uresti says, and instead “simply relocated to
No. 11‐2251 Page 3
Texas to recouperate [sic] from his snowmobile accident.” This argument is frivolous. Uresti
told the district judge that his flight was motivated by the worry that he would not receive
adequate medical treatment for his injuries in jail, so even by his own account he did not
“simply relocate.” His flight was not panicked or instinctive; he made a calculated and
deliberate decision to leave Illinois to avoid detention and prosecution, from which the
district judge could infer that his obstruction of justice was willful. See Arceo, 535 F.3d at 687;
Porter, 145 F.3d at 903–04.
Counsel last considers whether there is a basis to challenge the reasonableness of
Uresti’s prison sentence. Uresti’s sentence is 10 years below the minimum of the guidelines
range and is entitled to a presumption of reasonableness. See United States v. Liddell, 543 F.3d
877, 885 (7th Cir. 2008). Counsel has not identified any reason to set aside that presumption,
nor have we. Looking to 18 U.S.C. § 3553(a), the district court acknowledged Uresti’s
persistent drug dealing but determined that a below‐guidelines sentence was warranted
because of his serious injuries.
Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED. Uresti
requested substitute counsel, but because we agree with counsel that an appeal would be
frivolous, we DENY that request.