United States v. E. Martinez-Herrera

74 F. App'x 686

• Court: Court of Appeals for the Eighth Circuit
• Decided: September 17, 2003
• Docket: 03-1774
• Status: Unpublished

Opinion

PER CURIAM.

Erasmo Martinez-Herrera pleaded guilty to illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a), and the district court 1 sentenced him to 41 months imprisonment and 2 years supervised release. On appeal, counsel has moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that the district court abused its discretion in sentencing Martinez-Herrera at the top of the applicable Guidelines range.

We reject counsel’s argument because we do not review the district court’s exercise of discretion in setting a sentence at the top of a properly determined Guidelines range. See United States v. Smotherman, 326 F.3d 988, 989 (8th Cir.2003) (per curiam); United States v. Woodrum, 959 F.2d 100, 101 (8th Cir.1992) (per curiam).

We have reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and we find no nonfrivolous issues. Ac eordingly, we grant counsel’s motion to withdraw, and we affirm.

A true copy.

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