United States of America v. Javier Granados-Leon

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 20, 2021
Decided October 21, 2021
Before
FRANK H. EASTERBROOK, Circuit Judge
DANIEL A. MANION, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 20-3083
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAVIER GRANADOS-LEON,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Western Division.
No. 3:18-cr-50064(1)
Philip G. Reinhard,
Judge.
O R D E R
Javier Granados-Leon pleaded guilty to illegal reentry by a removed alien, see 8
U.S.C. §§ 1326(a), 1326(b)(1); 6 U.S.C. § 202(4), and was sentenced above the guidelines
range to 60 months in prison and three years of supervised release. Granados-Leon
appeals, but his counsel asserts that the appeal is frivolous and moves to withdraw.
See Anders v. California, 386 U.S. 738, 744 (1967). Counsel’s brief explains the nature of
the case and raises potential issues that an appeal like this would be expected to
involve. Because her analysis appears thorough, and Granados-Leon has not responded
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 20-3083 Page 2
to counsel’s motion, see C IR . R. 51(b), we limit our review to the subjects that counsel
discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel states that she consulted with Granados-Leon and confirmed, through
an interpreter, that he does not wish to withdraw his guilty plea. Counsel thus properly
refrains from exploring arguments about the adequacy of the plea. See United States v.
Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 671
(7th Cir. 2002).
Counsel first considers whether Granados-Leon could challenge the guidelines
calculations for his sentence but concludes that the district court made no error. The
court properly calculated a guidelines range of 33 to 41 months in prison based on a
criminal history category of VI and total offense level of 13. In calculating the offense
level, the court correctly assessed a base-offense level of 8 for a violation of 8 U.S.C.
§ 1326(a). See U.S.S.G. § 2L1.2(a). The court appropriately applied a four-level
enhancement under § 2L1.2(b)(1)(A) because Granados-Leon committed the present
offense after a prior felony conviction for an illegal reentry offense—he was convicted
of illegal reentry in the Western District of Texas in both 2011 and 2015. The court also
appropriately applied a four-level enhancement under § 2L1.2.(b)(3)(D) because he was
convicted of a felony offense other than illegal reentry—cocaine possession in Texas in
2014, see U.S.S.G. § 2L1.2, App. n.2 (defining “felony” under the guideline)—after being
removed in 1997. And a challenge to Granado-Leon’s criminal history category would
also be frivolous because his accumulated 16 criminal history points placed him well
above the 13 points needed to qualify for criminal history category VI, the highest
category.
Counsel next rightly concludes that Granados-Leon could not challenge the
substantive reasonableness of his above-guidelines 60-month sentence. We would
uphold an above-guidelines sentence so long as the district court applied the factors in
18 U.S.C. § 3553(a) and adequately explained why the sentence is appropriate. See
United States v. Musgraves, 883 F.3d 709, 716 (7th 2018). The court here discussed
Granados-Leon’s personal history and characteristics, acknowledging his familial ties to
the United States, his fear of returning to Mexico based on prior incidents of violence,
and his “physical infirmities, his hearing problem, and … mental illness.” But the court
found that those factors were outweighed by the seriousness of the offense (“This is the
third time he has a conviction for illegal reentry … [which] shows a pattern that makes
this offense more aggravated, particularly since he was on supervised release for that
offense at the time … ”), as well as the importance of deterring him from future criminal

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No. 20-3083 Page 3
conduct (“[H]e has had so many violations of his [removals] that … I don’t have much
confidence in his promise to me that he would not come back.”). The court acted well
within its discretion to impose an above-guidelines sentence in this case. See
United States v. Vasquez-Abarca, 946 F.3d 990, 993 (7th Cir. 2020) (upholding sentence
nearly twice the guidelines range for defendant’s illegal reentry where defendant had
multiple prior felony convictions and illegal reentries).
We also agree with counsel that any challenge to the district court’s imposition of
a three-year term of supervised release would be futile. Although the Guidelines
recommend no supervised release term for defendants who are likely to be removed,
see U.S.S.G. § 5D1.1(c), the court appropriately concluded that supervision was justified
to deter Granados-Leon, who repeatedly had reentered illegally, violated previous
conditions of supervised release, and required additional incentive not to return. See
U.S.S.G. § 5D1.1(c), App. n.5 (recommending that sentencing court consider supervised-
release term for removable alien if doing so would provide “added measure of
deterrence and protection based on the fact and circumstances of a particular case”);
United States v. Gawron, 929 F.3d 473, 476–77 (7th Cir. 2019).
Lastly, we agree with counsel that it would be frivolous to challenge any of the
court’s terms or conditions of supervised release. Counsel points out that the court
imposed a three-year term of supervised release despite Granados-Leon’s likely
removal, taking into account the predicament of supervising an alien who may be
removed during his supervised-release term. As counsel notes, the Tenth Circuit has
approved of this condition because removal has been recognized by Congress as an
acceptable condition of supervised release, and the condition furthers the objectives of
the § 3553(a) sentencing factors. See United States v. Garcia-Castaneda, 255 F. App’x 316,
318 (10th Cir. 2007). Here, the court appropriately justified its use of this condition as a
means of deterring Granados-Leon from future illegal reentries (“[H]e has come back
repeatedly, and even violated when he was given supervised release, [so] the court has
to tell him that he just can't come back and that another sentence would be imposed, a
separate, if he violates his supervised release.”).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.

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