                              UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




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

                           Submitted November 29, 2005
                            Decided November 30, 2005

                                      Before

                    Hon. WILLIAM J. BAUER, Circuit Judge

                    Hon. FRANK H. EASTERBROOK, Circuit Judge

                    Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 05-1490

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-221-1
JUAN M. LIMON-ROSAS,
    Defendant-Appellant.                     Joan Humphrey Lefkow,
                                             Judge.

                                    ORDER

       Juan Manuel Limon-Rosas pleaded guilty to being in the United States
without permission following his removal in violation of 8 U.S.C. § 1326(a). The
district court sentenced Limon-Rosas to 57 months’ imprisonment, two years’
supervised release, and a $100 special assessment. Appointed counsel filed a notice
of appeal but now moves to withdraw because he cannot discern a nonfrivolous basis
for appeal. See Anders v. California, 386 U.S. 738 (1967). Limon-Rosas has not
accepted our invitation to comment on counsel’s motion, see Cir. R. 51(b), and
because counsel’s supporting brief is facially adequate, we limit our review to the
No. 05-1490                                                                      Page 2

potential issues identified by counsel, see United States v. Tabb, 125 F.3d 583, 584
(7th Cir. 1997).

       When Limon-Rosas was arrested in Illinois for domestic battery in January
2004, law enforcement authorities discovered that he previously had been removed
to Mexico following an Illinois conviction for mob action. Limon-Rosas admitted that
he returned to the United States without permission but told the court that he came
back to care for his four minor children who still lived here with their mother. He
also asserted that the United States has been his only home since he was an infant
and that he has no living relatives in Mexico. The district court, mindful of
Limon-Rosas’s reasons for returning to the United States and the discretionary
nature of the sentencing guidelines, sentenced Limon-Rosas at the bottom of the
guideline range.

       In his brief, counsel first advises that Limon-Rosas does not wish to rescind his
guilty plea. Thus counsel correctly avoids framing any potential issue about the
voluntariness of the plea or the adequacy of the plea colloquy. See United States v.
Knox, 287 F.3d 667, 670-71 (7th Cir. 2002).

       Counsel then considers whether, despite the fact that sentencing occurred
after United States v. Booker, 125 S. Ct. 738 (2005), Limon-Rosas could argue that
his offense level was improperly increased by 16 levels when the judge and not a jury
determined that his prior conviction for mob action constitutes a “crime of violence.”
See U.S.S.G. § 2L1.2(b)(1)(A). But the proper characterization of the conviction is a
legal, not factual, question, United States v. Byrant, 310 F.3d 550, 552 (7th Cir.
2002), and in any event, prior convictions remain excluded from the limitations on
judicial factfinding that led to Booker, see Almendarez-Torres v. United States, 523
U.S. 224, 244 (1998); United States v. Pittman, 418 F.3d 704, 709 (7th Cir. 2005). In
addition, judicial findings of fact, such as the fact of a prior conviction, that affect
only the guideline range do not raise constitutional concerns since the judge is no
longer required to impose the guideline sentence. See United States v. Dean, 414
F.3d 725, 730 (7th Cir. 2005). This potential argument therefore is frivolous.

       Counsel also considers whether Limon-Rosas could argue that his prison term
is unreasonable because the district court declined to sentence him below the
guideline minimum based upon his cultural assimilation. Any sentence within a
properly calculated guideline range is presumptively reasonable. United States v.
Paulus, 419 F.3d 693, 700 (7th Cir. 2005); United States v. Mykytiuk, 415 F.3d 606,
608 (7th Cir. 2005). The district judge evaluated Limon-Rosas’s arguments and
concluded that his case did not warrant a sentence below the guideline minimum
because, she reasoned, many deportable aliens must leave family and friends when
No. 05-1490                                                                   Page 3

they are imprisoned or removed. The district court then looked to the factors in 18
U.S.C. § 3553(a) and imposed a 57-month sentence, noting that she thought the
circumstances were unfortunate but that the sentence nonetheless must reflect the
seriousness of his crime and not be so lenient as to be unfair to other similarly
situated aliens. Since a judge is not required to accept an argument for imposing a
discretionary sentence below the guideline range, it would be frivolous for
Limon-Rosas to argue on this record that his prison sentence is unreasonable. See
United States v. Gipson, 425 F.3d 335, 337 (7th Cir. 2005).

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