United States v. Luis Trujillo-Mendez

333 F. App'x 140

• Court: Court of Appeals for the Eighth Circuit
• Decided: October 6, 2009
• Docket: 08-1382
• Status: Unpublished

Opinion

PER CURIAM.

Luis Trujillo-Mendez appeals the sentence the district court 1 imposed after he pleaded guilty to illegal re-entry, in violation of 8 U.S.C. § 1326(a), (b). His 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 court abused its discretion in denying a downward departure under U.S.S.G. § 5K2.0. Because the district court acknowledged its authority to depart, and nothing in the record indicates that the refusal to do so was based upon an unconstitutional motive, the denial of Trujillo-Mendez’s motion for a downward departure is unreviewable. See United States v. Morell, 429 F.3d 1161, 1164 (8th Cir.2005). We also conclude that Trujillo-Mendez’s sentence is not unreasonable. See United States v. Radtke, 415 F.3d 826, 845-46 (8th Cir.2005).

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

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