United States v. A. Napoles-Garcia

16 F. App'x 525

• Court: Court of Appeals for the Eighth Circuit
• Decided: June 12, 2001
• Docket: 01-1296
• Status: Unpublished

Opinion

PER CURIAM.

Agapito Napoles-Garcia pleaded guilty to illegally re-entering the United States, in violation of 8 U.S.C. § 1326(a). His sentence was enhanced under 8 U.S.C. § 1326(b) because he had previously been deported after conviction for an aggravated felony. The district court 1 sentenced him to 57 months of imprisonment and 2 years of supervised release. On appeal, counsel has filed a brief and moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Napoles-Garcia has not filed a pro se supplemental brief.

Counsel first argues that Na-poles-Garcia’s prior deportation following his conviction for an aggravated felony was an element of the instant offense under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and that the district court’s failure to so advise him rendered his guilty plea invalid. This argument lacks merit. See Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); United States v. Raya-Ramirez, 244 F.3d 976, 977 (8th Cir.2001). Second, counsel argues that the sentence imposed is too harsh. This does not provide a valid basis for appeal. See 18 U.S.C. § 3742(a).

Having located no nonfrivolous issues for appeal after reviewing the record independently pursuant to Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we affirm the judgment of the dis triet court and grant counsel’s motion to withdraw.

1 . The Honorable Thomas M. Shanahan, United States District Judge for the District of Nebraska.