United States v. Alejandro Lopez-Zenteno

469 F. App'x 502

• Court: Court of Appeals for the Eighth Circuit
• Decided: April 23, 2012
• Docket: 11-2736
• Status: Unpublished

Opinion

PER CURIAM.

Alejandro Lopez-Zenteno appeals the 24-month prison sentence imposed upon him by the district court 1 after he pled guilty to unlawful re-entry after removal, in violation of 8 U.S.C. § 1326(a), (b)(2) and 6 U.S.C. §§ 202 and 557. After calculating an advisory Guidelines range of 46-57 months in prison, the district court considered the mitigating factors presented by Lopez-Zenteno — most specifically, that he had demonstrated positive change — and sentenced Lopez-Zenteno below the Guidelines range, to 24 months in prison and 3 years of supervised release. Lopez-Zenteno’s counsel has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and seeks leave to withdraw. Counsel argues that the district court’s sentence was greater than necessary to accomplish the goals of sentencing and therefore was substantively unreasonable.

This court concludes that the district court imposed a substantively reasonable sentence. See United States v. Elodio-Benitez, 672 F.3d 584, 585 (8th Cir.2012) (rejecting substantive reasonableness challenge to “significant downward variance” in sentencing illegal re-entry defendant). As noted in Elodio-Benitez, “ ‘where a district court has sentenced a defendant below the advisory guidelines range, it is nearly inconceivable that the court abused its discretion in not varying downward still further.’ ” See id. (quoting United States v. Moore, 581 F.3d 681, 684 (8th Cir.2009)).

Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), this court finds no nonfrivolous issues for review. The judgment is affirmed and counsel’s motion to withdraw is granted.

1 . The Honorable Joan N. Ericksen, United States District Judge for the District of Minnesota.