United States v. Urista-Coronado, 133 F.3d 923 (8th Cir. 1997)

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US Court of Appeals for the Eighth Circuit - 133 F.3d 923 (8th Cir. 1997)

Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That They Are Not Precedent and Generally Should Not Be Cited Unless Relevant to Establishing the Doctrines of Res Judicata, Collateral Estoppel, the Law of the Case, or if the Opinion Has Persuasive Value on a Material Issue and No Published Opinion Would Serve As Well.

Submitted Dec. 5, 1997. Filed Dec. 29, 1997

Before LOKEN, HEANEY, and MURPHY, Circuit Judges.

PER CURIAM.


Leobardo Urista-Coronado pleaded guilty to unlawfully reentering the United States without the permission of the United States Attorney General, after having been previously convicted of a felony and deported, in violation of 8 U.S.C. ยง 1326(a), (b) (2). The district court1 sentenced Urista-Coronado at the bottom of the applicable Guidelines range to 77 months imprisonment, to be followed by two years supervised release. In this appeal counsel has filed a brief under Anders v. California, 386 U.S. 738 (1967), raising a sentencing error. We affirm.

At sentencing, Urista-Coronado asked the court to depart downward from the Guidelines range by two levels on the basis that he agreed to be deported, and that he would suffer "collateral consequences" during imprisonment as a result of his alien status. The government resisted any departure. After expressing concern that Urista-Coronado had been deported three times before, and especially that he had a history of violence and criminal conduct, the district court denied the request for departure. Counsel argues in the Anders brief that the district court erred in refusing to depart.

We conclude the district court's decision not to depart was an exercise of discretion, which we do not review. See United States v. Field, 110 F.3d 587, 591 (8th Cir. 1997); United States v. Payne, 81 F.3d 759, 764-65 (8th Cir. 1996). After reviewing the remaining record on appeal, we also conclude there are no other nonfrivolous issues for appeal. See Penson v. Ohio, 488 U.S. 75, 80 (1988).

Accordingly, we affirm.

1

The HONORABLE R.E. LONGSTAFF, United States District Judge for the Southern District of Iowa