The district court calculated a total offense level of 17 for the § 1951 and
§ 922(g)(1) charges. See U.S.S.G. §§ 2B3.1(a); 2K2.1; 3E1.1. The court assigned
4 criminal-history points to Ortiz’s convictions for previous armed robberies and 2 more
points because he was on conditional release for those crimes when he entered the
AutoZone. Id. § 4A1.1(a), (c), (e). These 6 points yielded a Category III criminal history
and, with the total offense level of 17, a guidelines imprisonment range of 30 to 37
months for the § 1951 and § 922(g)(1) offenses. The district judge sentenced Ortiz to a
total of 37 months on those convictions, and a consecutive term of 84 months (the
statutory minimum) for brandishing a firearm, see 18 U.S.C. § 924(c)(1)(A)(ii).
Ortiz 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 Ortiz to comment on
counsel’s motion, but he has not responded. See C
R. 51(b). Because the analysis in
counsel’s brief appears to be thorough, we limit our review to the subjects that she has
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 begins by noting that Ortiz has no interest in challenging his guilty
pleas. Thus counsel appropriately omits discussion about the adequacy of the plea
colloquy and the voluntariness of those pleas. 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 considers arguing that the sentencing judge did not evaluate Ortiz’s
arguments in mitigation, but concludes that this appellate claim would be frivolous. We
agree. At sentencing Ortiz argued that the judge should take into account that his
attempt to rob the AutoZone had landed him back in state custody for 20 months (for
violating the terms of his conditional release for his state convictions) even before his
initial appearance in federal court. But the judge did consider those 20 months: Had
Ortiz not been retaken into state custody, the judge said, she would have been inclined
to sentence him above the guidelines range. The judge was not required to reduce Ortiz’s
sentence to reflect the time he was in state custody for other crimes. See United States v.
Garcia-Ugarte, 688 F.3d 314, 316 (7th Cir. 2012) (concluding that district court adequately
had considered, before rejecting, defendant’s argument that his federal sentence should
be shortened by length of time already served in state custody for different crime);
United States v. McNeil, 573 F.3d 379, 484 (7th Cir. 2009) (explaining that district court is
not required to reduce federal sentence to account for time served in state custody).