United States v. A.Villanueva-Basurto

62 F. App'x 748

• Court: Court of Appeals for the Eighth Circuit
• Decided: May 9, 2003
• Docket: 02-3575
• Status: Unpublished

Opinion

PER CURIAM.

Antonio Villanueva-Basurto pleaded guilty to illegal reentry after deportation following conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a), and the district court 1 sentenced him to 41 months imprisonment. On appeal, counsel moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and filed a brief raising one argument: that application of 8 U.S.C. § 1326(b)’s enhanced penalties for deportation after conviction for an aggravated felony violates the Sixth Amendment. In a pro se supplemental brief, Villanueva-Basurto argues that his sentence is unfair, because he did not know he was breaking the law by returning to the United States and his family needs him.

We reject both arguments. First, we previously have held that the penalties in section 1326(b) do not violate the Sixth Amendment. See United States v. Kempis-Bonola, 287 F.3d 699, 701-02 (8th Cir.), cert. denied, — U.S. -, 123 S.Ct. 295, 154 L.Ed.2d 196 (2002). Second, this court does not review the extent of the district court’s downward departure, see United States v. McFarlane, 309 F.3d 510, 516 (8th Cir.2002), and in any event, Villanueva-Basurto stipulated in his plea agreement to a sentence greater than the one he received, see United States v. Nguyen, 46 F.3d 781, 783 (8th Cir.1995).

Further, having reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 846, 102 L.Ed.2d 300 (1988), we find no nonfrivolous issues.

Accordingly, we grant counsel’s motion to withdraw, and we affirm.

1 . The HONORABLE JAMES M. ROSENBAUM, Chief Judge, United States District Court for the District of Minnesota.