United States v. Antonio Acevedo-Rodriguez

Eighth Circuit

United States v. Antonio Acevedo-Rodriguez

597 F. App'x 397

CourtCourt of Appeals for the Eighth Circuit

DecidedMarch 23, 2015

Docket14-2369

StatusUnpublished

This text of 597 F. App'x 397 (United States v. Antonio Acevedo-Rodriguez) 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. Antonio Acevedo-Rodriguez, 597 F. App'x 397 (8th Cir. 2015).

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Opinion

PER CURIAM.

Antonio Acevedo-Rodriguez directly appeals the 70-month sentence imposed by the district court 1 after he pleaded guilty to illegally reentering the country and being a felon in possession of a firearm. In a brief filed under Anders v. California, 386 U.S. 788, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel argues that the district court erred by assessing 3 criminal history points for Acevedo’s November 1996 perjury conviction.

After careful review, we affirm. See United States v. Delgado-Hernandez, 646 F.3d 562, 566 (8th Cir.2011) (per curiam) (standard of review). The district court properly determined that the perjury conviction involved a sentence of imprisonment exceeding 1 year and 1 month — even though Acevedo alleged that he had served only 1 year of the 2-year prison sentence before being paroled — because criminal history points are based on the sentence pronounced rather than the time actually served. See U.S.S.G. §§ 4A1.1(a), 4A1.2(b) & comment, (n.2). The court also did not clearly err in finding, based on Acevedo’s statement during his presen-tence interview, that he had last reentered the country prior to May 2011. Because illegal reentry is an ongoing offense for which relevant conduct is calculated from the date of the last reentry, see Delgado-Hernandez, 646 F.3d at 567, Acevedo’s November 1996 perjury sentence was imposed within 15 years of his commencement of this reentry offense, see U.S.S.G. § 4A1.2(e)(1) & comment, (n.8).

Having independently reviewed the record under Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we find no nonfrivolous issues for appeal. Accordingly, we affirm the judgment of the district court, and we grant counsel’s motion to withdraw, subject to counsel informing appellant about the procedures for seeking rehearing from this court and for filing a petition for writ of certiorari.

1

. The Honorable Beth Phillips, United States District Judge for the Western District of Missouri.

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PER CURIAM.

Antonio Acevedo-Rodriguez directly appeals the 70-month sentence imposed by the district court 1 after he pleaded guilty to illegally reentering the country and being a felon in possession of a firearm. In a brief filed under Anders v. California, 386 U.S. 788, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel argues that the district court erred by assessing 3 criminal history points for Acevedo’s November 1996 perjury conviction.

After careful review, we affirm. See United States v. Delgado-Hernandez, 646 F.3d 562, 566 (8th Cir.2011) (per curiam) (standard of review). The district court properly determined that the perjury conviction involved a sentence of imprisonment exceeding 1 year and 1 month — even though Acevedo alleged that he had served only 1 year of the 2-year prison sentence before being paroled — because criminal history points are based on the sentence pronounced rather than the time actually served. See U.S.S.G. §§ 4A1.1(a), 4A1.2(b) & comment, (n.2). The court also did not clearly err in finding, based on Acevedo’s statement during his presen-tence interview, that he had last reentered the country prior to May 2011. Because illegal reentry is an ongoing offense for which relevant conduct is calculated from the date of the last reentry, see Delgado-Hernandez, 646 F.3d at 567, Acevedo’s November 1996 perjury sentence was imposed within 15 years of his commencement of this reentry offense, see U.S.S.G. § 4A1.2(e)(1) & comment, (n.8).

Having independently reviewed the record under Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we find no nonfrivolous issues for appeal. Accordingly, we affirm the judgment of the district court, and we grant counsel’s motion to withdraw, subject to counsel informing appellant about the procedures for seeking rehearing from this court and for filing a petition for writ of certiorari.

1

. The Honorable Beth Phillips, United States District Judge for the Western District of Missouri.

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