United States v. A. Lavariega-Diego

Eighth Circuit

United States v. A. Lavariega-Diego

83 F. App'x 144

CourtCourt of Appeals for the Eighth Circuit

DecidedDecember 12, 2003

Docket03-2807

StatusUnpublished

This text of 83 F. App'x 144 (United States v. A. Lavariega-Diego) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. A. Lavariega-Diego, 83 F. App'x 144 (8th Cir. 2003).

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Opinion

PER CURIAM.

Aurelio Lavariega-Diego challenges the sentence the District Court 1 imposed upon his guilty plea to illegally reentering the United States after deportation following a *145 conviction for aggravated domestic-abuse assault, in violation of 8 U.S.C. § 1326(a)-(b) (2003). On appeal, his counsel has filed a brief and moved to withdraw under An-ders v. California, 386 U.S. 738, 87 S.Ct. 1396,18 L.Ed.2d 493 (1967).

On appeal, counsel argues that the sentence imposed was too harsh, because Lavariego-Diego’s domestic-abuse history-which was the reason the District Court gave for sentencing him at the top of the applicable Guidelines range-was fully accounted for in his criminal history score and in the 16-level increase to his base offense level. This argument fails. Lavariega-Diego’s sentence falls within 8 U.S.C. § 1326(b)’s 20-year maximum, it is within the appropriate Guidelines range, and we will not review the sentence merely because it is at the top of the range. See United States v. Smotherman, 326 F.3d 988, 989 (8th Cir.) (per curiam), cert. denied, - U.S. -, 124 S.Ct. 293, 157 L.Ed.2d 203 (2003) (sentence at top of correct range does not create constitutional infirmity allowing appellate review).

Having found no nonfrivolous issues after reviewing the record independently under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we affirm. We also grant counsel’s motion to withdraw.

1

. The Honorable Mark W. Bennett, Chief Judge, United States District Court for the Northern District of Iowa.

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PER CURIAM.

Aurelio Lavariega-Diego challenges the sentence the District Court 1 imposed upon his guilty plea to illegally reentering the United States after deportation following a *145 conviction for aggravated domestic-abuse assault, in violation of 8 U.S.C. § 1326(a)-(b) (2003). On appeal, his counsel has filed a brief and moved to withdraw under An-ders v. California, 386 U.S. 738, 87 S.Ct. 1396,18 L.Ed.2d 493 (1967).

On appeal, counsel argues that the sentence imposed was too harsh, because Lavariego-Diego’s domestic-abuse history-which was the reason the District Court gave for sentencing him at the top of the applicable Guidelines range-was fully accounted for in his criminal history score and in the 16-level increase to his base offense level. This argument fails. Lavariega-Diego’s sentence falls within 8 U.S.C. § 1326(b)’s 20-year maximum, it is within the appropriate Guidelines range, and we will not review the sentence merely because it is at the top of the range. See United States v. Smotherman, 326 F.3d 988, 989 (8th Cir.) (per curiam), cert. denied, - U.S. -, 124 S.Ct. 293, 157 L.Ed.2d 203 (2003) (sentence at top of correct range does not create constitutional infirmity allowing appellate review).

Having found no nonfrivolous issues after reviewing the record independently under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we affirm. We also grant counsel’s motion to withdraw.

1

. The Honorable Mark W. Bennett, Chief Judge, United States District Court for the Northern District of Iowa.

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