United States v. M.Martinez-Rodriguez

68 F. App'x 769

• Court: Court of Appeals for the Eighth Circuit
• Decided: July 21, 2003
• Docket: 03-1066
• Status: Unpublished

Opinion

PER CURIAM.

Marcos Martinez-Rodriguez pleaded guilty to illegal reentry following deportation after conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2). At sentencing, the district court 1 denied Martinez-Rodriguez’s motion for downward departure and sentenced him to 71 months imprisonment and 3 years supervised release. On appeal, counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that the district court erroneously sentenced Martinez-Rodriguez at the top of the Guidelines range, and that the court should have granted a downward departure. We reject these arguments.

We do not review a sentence that has been imposed at the top of a properly determined Guidelines range. See United States v. Woodrum, 959 F.2d 100, 101 (8th Cir.1992) (per curiam). Nor do we review a sentencing court’s denial of a downward departure, where, as here, there is no indication the court believed it lacked the authority to depart. See United States v. Lopez-Arce, 267 F.3d 775, 783-84 (8th Cir. 2001).

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

A true copy.

1 . The HONORABLE JAMES M. ROSENBAUM, Chief Judge, United States District Court for the District of Minnesota.