United States v. Hernandez-Arellano

Eighth Circuit

United States v. Hernandez-Arellano

44 F. App'x 54

CourtCourt of Appeals for the Eighth Circuit

DecidedAugust 26, 2002

DocketNo. 01-1642

StatusPublished

This text of 44 F. App'x 54 (United States v. Hernandez-Arellano) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Hernandez-Arellano, 44 F. App'x 54 (8th Cir. 2002).

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Opinion

PER CURIAM.

Sergio Hernandez-Arellano pleaded guilty to illegal reentry following deportation for an aggravated felony, in violation of 8 U.S.C. § 1326(b)(2). The district [55]*55court¹ sentenced him to 70 months imprisonment and 3 years supervised release, and fined him $500. On appeal, counsel has filed a brief and moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Defendant has filed a pro se supplemental brief, as well as a motion for appointment of counsel.

We address and reject seriatim the issues noted in counsel’s brief. First, based on our review of the record, we conclude that the guilty plea was valid. Second, defendant’s prior offense of transporting aliens constituted an aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(l)(A). See 8 U.S.C. § 1101(a)(43)(N) (defining “aggravated felony”). Third, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is inapplicable here. See United States v. Raya-Ramirez, 244 F.3d 976, 977 (8th Cir.), cert. denied, — U.S.-, 122 S.Ct. 223, 151 L.Ed.2d 160 (2001). Fourth, defendant’s dissatisfaction with the use of his prior convictions in calculating his criminal history constituted an impermissible collateral attack. See U.S.S.G. § 4A1.2, comment. (n.6); United States v. Jones, 28 F.3d 69, 70 (8th Cir.1994) (per curiam).

Additionally, we are unpersuaded by the arguments presented in the pro se supplemental brief. Defendant’s issues with his counsel’s performance are not properly before us in this direct criminal appeal, see United States v. Martin, 59 F.3d 767, 771 (8th Cir.1995), and defendant’s belief that his sentence (at the bottom of the applicable Guidelines range) was too harsh does not per se provide a jurisdictional basis for review, see 18 U.S.C. § 3742(a) (grounds for appeal of sentence by defendant).

After reviewing the record independently under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we have found no nonfrivolous issues. Accordingly, we grant counsel’s motion to withdraw, we affirm the judgment, and we deny the motion for appointment of counsel.

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PER CURIAM.

Sergio Hernandez-Arellano pleaded guilty to illegal reentry following deportation for an aggravated felony, in violation of 8 U.S.C. § 1326(b)(2). The district [55]*55court¹ sentenced him to 70 months imprisonment and 3 years supervised release, and fined him $500. On appeal, counsel has filed a brief and moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Defendant has filed a pro se supplemental brief, as well as a motion for appointment of counsel.

We address and reject seriatim the issues noted in counsel’s brief. First, based on our review of the record, we conclude that the guilty plea was valid. Second, defendant’s prior offense of transporting aliens constituted an aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(l)(A). See 8 U.S.C. § 1101(a)(43)(N) (defining “aggravated felony”). Third, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is inapplicable here. See United States v. Raya-Ramirez, 244 F.3d 976, 977 (8th Cir.), cert. denied, — U.S.-, 122 S.Ct. 223, 151 L.Ed.2d 160 (2001). Fourth, defendant’s dissatisfaction with the use of his prior convictions in calculating his criminal history constituted an impermissible collateral attack. See U.S.S.G. § 4A1.2, comment. (n.6); United States v. Jones, 28 F.3d 69, 70 (8th Cir.1994) (per curiam).

Additionally, we are unpersuaded by the arguments presented in the pro se supplemental brief. Defendant’s issues with his counsel’s performance are not properly before us in this direct criminal appeal, see United States v. Martin, 59 F.3d 767, 771 (8th Cir.1995), and defendant’s belief that his sentence (at the bottom of the applicable Guidelines range) was too harsh does not per se provide a jurisdictional basis for review, see 18 U.S.C. § 3742(a) (grounds for appeal of sentence by defendant).

After reviewing the record independently under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we have found no nonfrivolous issues. Accordingly, we grant counsel’s motion to withdraw, we affirm the judgment, and we deny the motion for appointment of counsel.

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