United States v. Emilio De La Garza-Montemayor

562 F. App'x 226

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 14, 2014
• Docket: 13-20207
• Status: Unpublished

Opinion

PER CURIAM: *

The attorney appointed to represent Emilio De La Garza-Montemayor has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir.2011). De La Garza-Montemayor has filed a response. We have reviewed counsel’s brief and the relevant portions of the record reflected therein, as well as De La Garza-Montemayor’s response. We concur with counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review. In his response, De La Garza-Montemayor contends, inter alia, that his below-range sentence should not be entitled to a presumption of reasonableness because his guideline sentencing range was calculated under U.S.S.G. § 2L1.2, which he argues is not based on empirical evidence. That contention is foreclosed, see United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.2009), but by raising the argument De La Garza-Montemayor has preserved it for further review.

Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th CiR. R. 42.2.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.