                        NONPRECEDENTIAL DISPOSITION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 June 4, 2014
                                   Decided June 4, 2014

                                          Before

                              RICHARD A. POSNER, Circuit Judge

                              JOEL M. FLAUM, Circuit Judge

                              DIANE S. SYKES, Circuit Judge

No. 13-2957

UNITED STATES OF AMERICA,                          Appeal from the United States District
     Plaintiff–Appellee,                           Court for the Central District of Illinois.

       v.                                          No. 13-10014-001

ESTEBAN NAGASPACA-VENTURA,                         James E. Shadid
     Defendant–Appellant.                          Chief Judge.

                                        ORDER

        Esteban Nagaspaca-Ventura, a Mexican national, was arrested in Illinois for
driving under the influence and subsequently was charged with illegal reentry in
violation of 8 U.S.C. § 1326(a). He pleaded guilty to the federal charge without a plea
agreement and was sentenced to 24 months’ imprisonment. Nagaspaca-Ventura filed a
notice of appeal, but his appointed attorney asserts that the appeal is frivolous and
seeks to withdraw under Anders v. California, 386 U.S. 738 (1967). Counsel has submitted
a brief that explains the nature of the case and addresses the issues that an appeal of this
kind might be expected to involve. We invited Nagaspaca-Ventura to comment on
counsel’s motion, but he has not responded. See CIR. R. 51(b). Because the analysis in the
brief appears to be thorough, we limit our review to the subjects that counsel has
No. 13-2957                                                                            Page 2

discussed. See United States v. Bey, — F.3d —, 2014 WL 1389090, at *2 (7th Cir. 2014);
United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).

         Counsel first assesses whether Nagaspaca-Ventura could challenge the
voluntariness of his guilty plea but neglects to say whether he discussed this possibility
with his client. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States
v. Knox, 287 F.3d 667, 670–71 (7th Cir. 2002). Counsel’s omission does not require that
we deny the Anders motion, though, because his discussion and our review of the
record convince us that a challenge to the voluntariness of the plea would be frivolous.
See Konczak, 683 F.3d at 349. Because Nagaspaca-Ventura did not move in the district
court to withdraw his plea, we would review the plea colloquy for plain error.
See United States v. Davenport, 719 F.3d 616, 618 (7th Cir. 2013). Our review of the record
reflects that the district court substantially complied with Federal Rule of Criminal
Procedure 11: the court determined that Nagaspaca-Ventura’s plea was voluntary,
see FED. R. CRIM. P. 11(b)(2); identified the elements of the charged offense and the
maximum possible penalties, and explained that Nagaspaca-Ventura’s sentence would
be based on the advisory guidelines and other “statutory sentencing factors,”
see id. 11(b)(1)(G), (H), (M). The court also explained, and Nagaspaca-Ventura said he
understood, the rights he would lose by pleading guilty, including his right to a jury
trial with the assistance of counsel. See id. 11(b)(1)(B), (C), (D), (E), (F). And the
government proffered a factual basis for the crime, which Nagaspaca-Ventura
confirmed as correct. See id. 11(b)(3). We note that the court did not warn
Nagaspaca-Ventura that his statements under oath could subject him to perjury
charges, see FED. R. CRIM. P. 11(b)(1)(A), but that omission was harmless because no
prosecution for perjury is pending or contemplated. See United States v. Blalock, 321 F.3d
686, 689 (7th Cir. 2003); United States v. Graves, 98 F.3d 258, 259 (7th Cir. 1996).

       Counsel next considers whether Nagaspaca-Ventura could challenge the district
court’s imposition of an 8-level increase in his offense level for a prior conviction of a
felony drug offense. See U.S.S.G. § 2L1.2(a), (b)(1)(B). We agree with counsel that this
argument would be frivolous because Nagaspaca-Ventura previously had been
removed after he was convicted in Illinois for delivery of cannabis. See § 2L1.2(b)(1)(B);
United States v. Gonzalez-Lara, 702 F.3d 928, 931 (7th Cir. 2012).

       Counsel next considers whether Nagaspaca-Ventura could challenge the district
court’s conclusion that he had eight criminal-history points, but properly rejects this
argument as frivolous. At his change of plea hearing, Nagaspaca-Ventura admitted to
his multiple prior sentences for entering and attempting to enter the United States
No. 13-2957                                                                           Page 3

illegally. The court agreed with the probation officer that those convictions earned him
five criminal-history points. See U.S.S.G. § 4A1.1(b), (c). He received another point for a
sentence for driving under the influence, see id. § 4A1.1(c), and two additional points
because he was on supervised release in October 2012 when he most recently reentered
the country, see id. § 4A1.1(d). Nagaspaca-Ventura did not object to the court’s findings.

       Counsel lastly considers whether Nagaspaca-Ventura could challenge his
sentence as unreasonable, but properly concludes that such a challenge would be
frivolous. The 24-month term is within his guidelines range of 24 to 30 months and thus
presumptively reasonable. See Rita v. United States, 551 U.S. 338, 341 (2007); United States
v. Pineda, 743 F.3d 213, 219 (7th Cir. 2014). Counsel has not identified any reason to set
aside that presumption, nor can we. The judge considered the relevant factors in
18 U.S.C. § 3553(a), including testimony from Nagaspaca-Ventura’s wife about the
couple’s relationship and their children, his history of drug and alcohol use, and the
difficulty of deterring him from illegally reentering the country. See id. § 3553(a)(1), (2).

       Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.
