United States v. Geraldo Lopez-Topete

Opinion

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________

No. 03-3637 ___________

United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Minnesota. Geraldo Lopez-Topete, * also known as Abel De La Paz-Barrios, * [UNPUBLISHED] * Appellant. * ___________

Submitted: July 6, 2004 Filed: July 26, 2004 ___________

Before MELLOY, HANSEN, and COLLOTON, Circuit Judges. ___________

PER CURIAM.

Geraldo Lopez-Topete appeals the sentence imposed by the district court1 after he pleaded guilty to one count of interstate travel in aid of unlawful activity, in violation of 18 U.S.C. § 1952(a)(3). In a brief filed under Anders v. California, 386 U.S. 738 (1967), Lopez-Topete challenges the denial of a downward departure motion based on diminished mental capacity. This argument amounts to an attack on the district court’s discretionary refusal to depart downward, which in the

1 The Honorable James M. Rosenbaum, Chief Judge, United States District Court for the District of Minnesota. circumstances of this case is unreviewable. See United States v. Gonzalez-Ramirez, 350 F.3d 731, 734 (8th Cir. 2003).

Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75 (1988), we find no nonfrivolous issues. Accordingly, we affirm. We also grant counsel’s motion to withdraw. ______________________________

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