United States v. Rafael Garcia-Zuniga

37 F. App'x 848

Opinion

PER CURIAM.

Rafael Garcia-Zuniga pleaded guilty to re-entering the United States illegally after deportation, following his conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b). The district court 1 departed upward, finding that Gareia-Zuniga’s criminal history was underrepresented, and sentenced him to 68 months imprisonment and 2 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 district court erred in departing upward.

The district court did not abuse its discretion by departing upward. See United States v. Levi, 229 F.3d 677, 679 (8th Cir.2000). It properly considered Garcia-Zuniga’s past charged and uncharged conduct, as outlined in the unobjected-to presentence report. See U.S.S.G. § 4A1.3; Levi 229 F.3d at 679; United States v. Beatty, 9 F.3d 686, 690 (8th Cir.1993); United States v. Davila, 964 F.2d 778, 784-85 (8th Cir.), cert. denied, 506 U.S. 964, 113 S.Ct. 438, 121 L.Ed.2d 358 (1992). Further, 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 we grant counsel’s motion to withdraw.

1 . The HONORABLE MARK W. BENNETT, Chief Judge, United States District Court for the Northern District of Iowa.