United States v. Cesar Payan-Carrillo, No. 17-3350 (8th Cir. 2018)

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Court Description: Per Curiam - Before Loken, Colloton and Benton, Circuit Judges] Criminal case - Sentencing. Anders case. Upward variance was not an abuse of the court's discretion as it properly considered the weighed the 3553(a) factors; claim of ineffective assistance of counsel should be brought in a Section 2255 proceeding. [ July 18, 2018
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United States Court of Appeals For the Eighth Circuit ___________________________ No. 17-3350 ___________________________ United States of America lllllllllllllllllllllPlaintiff - Appellee v. Cesar Gustavo Payan-Carrillo, also known as Erik Molina-Grado lllllllllllllllllllllDefendant - Appellant ____________ Appeal from United States District Court for the Western District of Missouri - Kansas City ____________ Submitted: July 16, 2018 Filed: July 19, 2018 [Unpublished] ____________ Before LOKEN, COLLOTON, and BENTON, Circuit Judges. ____________ PER CURIAM. In this direct criminal appeal, Cesar Payan-Carrillo challenges the sentence the district court1 imposed after he pleaded guilty to illegal reentry. His counsel has 1 The Honorable Beth Phillips, United States District Judge for the Western District of Missouri. moved to withdraw and submitted a brief under Anders v. California, 386 U.S. 738 (1967), discussing whether the sentence was substantively unreasonable. PayanCarillo has also filed a pro se supplemental brief, in which he argues that the sentence was substantively unreasonable, as the upward variance was not justified; and that counsel was ineffective for failing to object to the inclusion of a pending assault charge in the presentence report. As to the reasonableness of the sentence, we conclude that the district court did not abuse its discretion in varying upward, as it properly considered the 18 U.S.C. § 3553(a) factors, and there was no indication that it overlooked a relevant factor, or committed a clear error of judgment in weighing relevant factors. See United States v. Feemster, 572 F.3d 455, 461, 464 (8th Cir. 2009) (en banc) (standard of review); see also United States v. Mangum, 625 F.3d 466, 469-70 (8th Cir. 2010). We conclude Payan-Carillo’s ineffective-assistance claim would be better litigated in a 28 U.S.C. § 2255 proceeding. See United States v. Ramirez-Hernandez, 449 F.3d 824, 826-27 (8th Cir. 2006). Furthermore, we have independently reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988), and have found no non-frivolous issues for appeal. Accordingly, we grant counsel’s motion to withdraw, and affirm. ______________________________ -2-