United States v. Guadalupe Perez-Cano

23 F. App'x 642

• Court: Court of Appeals for the Eighth Circuit
• Decided: January 29, 2002
• Docket: 01-2964
• Status: Unpublished

Opinion

PER CURIAM.

Guadalupe Perez-Cano pleaded guilty to illegal reentry following deportation after conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a), and the district court 1 sentenced him to 77 months imprisonment and 3 years supervised release. On appeal, counsel has moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and has filed a brief arguing that the court erred when it denied Mr. PerezCano’s downward-departure motion.

Further, as the court “eleet[ed] not to depart in this case,” and Mr. Perez-Cano does not suggest the court acted with an unconstitutional motive, its discretionary decision not to depart is unreviewable. See United States v. Johnson, 169 F.3d 569, 573 (8th Cir.1999) (district court’s discretionary decision not to depart downward is reviewable only if court acted with unconstitutional motive or believed it lacked authority to depart); United States v. Field, 110 F.3d 587, 591-92 (8th Cir.1997) (district court’s conclusion “under the facts of this case” that downward departure was not warranted fairly indicated it recognized its authority to depart) (internal quotations omitted).

Following our independent review, see Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we find no nonfrivolous issues. Accordingly, we affirm and grant counsel’s motion to withdraw.

A true copy.

1 . The Honorable Richard G. Kopf, Chief Judge, United States District Court for the District of Nebraska.