                              UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53



           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                            Submitted March 23, 2006
                             Decided March 24, 2006

                                      Before

                    Hon. WILLIAM J. BAUER, Circuit Judge

                    Hon. DANIEL A. MANION, Circuit Judge

                    Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 05-2785

UNITED STATES OF AMERICA,                    Appeal from the United States District
    Plaintiff-Appellee,                      Court for the Northern District of
                                             Illinois, Eastern Division
      v.
                                             No. 04 CR 126
SEFERINO J.B. REYES-ACOSTA,
    Defendant-Appellant.                     James B. Zagel,
                                             Judge.

                                    ORDER

       After Seferino Reyes-Acosta served a five-year sentence for possession of a
controlled substance with intent to deliver (an aggravated felony), he was deported
to Mexico, his country of origin. He reentered the United States illegally and was
discovered by law enforcement officials after being arrested for possession of
cannabis; he later pleaded guilty to illegal reentry, 8 U.S.C. § 1326(a), (b)(2),
pursuant to a written plea agreement. Shortly thereafter, but before the court
imposed sentence, Reyes-Acosta moved to withdraw his guilty plea on the basis that
Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 375 F.3d
508 (7th Cir. 2004), aff’d, 543 U.S. 220 (2005), required the prosecution to prove
beyond a reasonable doubt that he had a prior conviction for a drug-trafficking
offense. When the district court denied Reyes-Acosta’s motion to withdraw, he
objected to the court’s reliance on the Sentencing Guidelines, arguing that they
No. 05-2785                                                                   Page 2
were unconstitutional in their entirety under Blakely and Booker. The court
overruled these objections as well.

       At sentencing, the district court adopted the guideline sentencing range of 57
to 71 months’ imprisonment recommended in the presentence report. Reyes-Acosta
argued that the court should impose a sentence below the guideline range because
consideration of the 18 U.S.C. § 3553(a) sentencing factors revealed mitigating
circumstances that warranted a lesser punishment; namely, that he reentered the
United States to escape his “miserable existence” in Mexico and to make money to
care for his son who lives in the United States. Although the court stated that it
understood Reyes-Acosta’s “motivation to return to the United States,” it sentenced
him to 57 months in prison. The court felt that the sentence, which was at the low
end of the guideline range, was reasonable because Reyes-Acosta was discovered
only after being arrested for committing yet another drug offense.

        Reyes-Acosta filed a notice of appeal, but his appointed lawyer now moves to
withdraw because he cannot discern a nonfrivolous basis for the appeal. See Anders
v. California, 386 U.S. 738 (1967). Reyes-Acosta has not accepted our invitation to
comment on counsel’s motion. See Cir. R. 51(b). Because counsel’s supporting brief
is facially adequate, we limit our review to the potential issues identified by
counsel. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).

       Counsel first considers whether Reyes-Acosta could argue that the district
court erred by denying his motion to withdraw his guilty plea. We would review the
court’s denial of such a motion for abuse of discretion and its factual findings for
clear error. United States v. Rogers, 387 F.3d 925, 931 (7th Cir. 2004). Although a
defendant does not have an absolute right to withdraw a plea before sentencing, the
court may allow him to do so if he provides a “fair and just reason” for the
withdrawal. United States v. Carroll, 412 F.3d 787, 792 (7th Cir. 2005). Counsel
points out that the only argument that Reyes-Acosta could make regarding his
guilty plea is that the Supreme Court’s decisions in Blakely and Booker—which
were issued after Reyes-Acosta entered into the plea agreement—created a change
in law that provided a “fair and just reason” to withdraw his plea. We have held,
however, that defendants are bound to the facts admitted in their plea agreements
regardless of whether the agreement preceded Blakely or Booker. See United States
v. Paulus, 419 F.3d 693, 699 (7th Cir. 2005) (stating that the defendant’s failure to
foresee Booker “does not alter the effect of the plea agreement”). Reyes-Acosta,
having admitted in his plea agreement that he had a prior conviction for possession
of a controlled substance with intent to deliver, is thus “stuck with the
consequences of admitting those facts for the purposes of sentencing.” Id. Counsel
is therefore correct that Blakely and Booker do not provide Reyes-Acosta a “fair and
just reason” for withdrawing his guilty plea, and any argument to the contrary
would be frivolous.
No. 05-2785                                                                     Page 3
       Counsel next considers three potential sentencing challenges, beginning with
whether Reyes-Acosta could argue that the district court erroneously applied the
16-level upward adjustment for being deported because of a drug-trafficking
conviction. See U.S.S.G. § 2L1.2(b)(1)(A)(i). Counsel appears to suggest that the
16-level adjustment should not apply because the crime for which Reyes-Acosta was
convicted and eventually deported was not a drug-trafficking offense. However,
Reyes-Acosta admitted in his plea agreement that he had a prior conviction for
possession of a controlled substance with intent to deliver, see U.S.S.G. § 2L1.2 cmt.
n.1(B)(iv); he also admitted in the agreement that given his conviction the 16-level
adjustment was appropriate. Reyes-Acosta is thus bound to these admissions, see
United States v. Cieslowski, 410 F.3d 353, 361-63 (7th Cir. 2005) (“Plea agreements
are governed under the principles of contract law . . . .”), and nothing in the
agreement or the transcript of the plea colloquy suggests that Reyes-Acosta did not
understand this. Counsel thus correctly determines that it would be frivolous to
argue that Reyes-Acosta was not convicted and deported for committing a drug-
trafficking offense.

       Counsel also considers whether Reyes-Acosta could argue that, under the
Supreme Court’s decisions in Blakely and Booker, the government was required to
prove his prior conviction beyond a reasonable doubt before the district court could
apply the 16-level adjustment. But Blakely and Booker suggest otherwise. Both
decisions reiterate the Court’s prior holdings that the fact of a prior conviction need
not be proven beyond a reasonable doubt. See United States v. Lechuga-Ponce, 407
F.3d 895, 896-97 (7th Cir. 2005). In any event, Reyes-Acosta’s prior conviction was
effectively proven beyond a reasonable doubt because he admitted to it in the plea
agreement. See id. at 896. This argument would thus be frivolous.

       Finally, counsel considers arguing that the 57-month sentence was
unreasonable under Booker because the district court failed to take into account
mitigating circumstances, such as the conditions in Mexico that he sought to escape
and his motivation to earn money to care for his son. But Reyes-Acosta’s sentence
fell within the properly calculated guideline range and therefore is entitled to a
rebuttable presumption of reasonableness. United States v. Mykytiuk, 415 F.3d
606, 608 (7th Cir. 2005). The district court considered Reyes-Acosta’s principal
argument that he reentered the United States to be with his son, but concluded that
his “plight with respect to his son” was outweighed by the fact that he was
apprehended for illegal reentry only after he was arrested for a separate drug
charge. The court then looked to other factors in § 3553(a) and imposed a 57-month
sentence, deeming the minimum sentence of the guidelines reasonable in light of
Reyes-Acosta’s prior convictions for drug offenses. Counsel is thus correct that it
would be frivolous for Reyes-Acosta to argue on this record that his sentence is
unreasonable.
No. 05-2785                                                              Page 4
      Because counsel correctly determines that any argument that Reyes-Acosta
could make on appeal would be frivolous, we GRANT counsel’s motion to withdraw
and DISMISS this appeal.
