United States v. Barnes-Salas
Opinion of the Court
ORDER
In 2001 deported felon Antonio Barnes-Salas pleaded guilty to illegally reentering the United States in violation of 8 U.S.C. § 1326(a),(b)(2). The district court sentenced Barnes-Salas to 70 months’ imprisonment, three years’ supervised release, and a $100 special assessment. His written plea agreement allows him to appeal only the validity of the plea itself or his sentence. Barnes-Salas filed a notice of appeal, but his attorney, finding no non-frivolous issues for appeal, has moved to withdraw in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel’s brief is facially adequate and Barnes-Salas has not responded, although he was given the opportunity to do so. See Cir. R. 51(b). Therefore, we confine our review to those potential issues identified in counsel’s brief. See United States v. Tabb, 125 F.3d 583 (7th Cir. 1997) (per curiam).
Counsel first evaluates whether Barnes-Salas could argue that his plea was not knowing and voluntary. Barnes-
Next, counsel considers whether Barnes-Salas could raise any challenge to his sentence. First, counsel correctly notes that Barnes-Salas’ 70-month prison term is within the applicable guideline range and well below the 20-year maximum sentence prescribed for reentering the country as an aggravated felon. See 8 U.S.C. § 1326(b)(2).
Counsel then evaluates whether Barnes-Salas could base an appeal on the only objection that he made at sentencing—namely, that he should not receive the three criminal history points recommended by the probation officer for a prior aggravated criminal sexual abuse conviction. Counsel notes, however, that Barnes-Salas successfully persuaded the district court that the conviction was related to a second aggravated criminal sexual abuse conviction and that these state convictions should be counted only as one conviction for purposes of calculating his criminal history. See U.S.S.G. § 4A1.2(a)(2). Because Barnes-Salas did not raise any further objections at sentencing and explicitly approved the remainder of the sentencing calculations in his plea agreement, he has waived any other challenge to the sentencing calculations. See United States v. Staples, 202 F.3d 992, 995 (7th Cir. 2000). Thus, any potential appeal of his sentence would likewise be frivolous.
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
Reference
- Full Case Name
- United States v. Antonio M. BARNES-SALAS
- Status
- Published