United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-1774
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Erasmo Martinez-Herrera, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: September 15, 2003
Filed: September 17, 2003
___________
Before BYE, BOWMAN, and MELLOY, Circuit Judges.
___________
PER CURIAM.
Erasmo Martinez-Herrera pleaded guilty to illegal reentry after deportation, in
violation of 8 U.S.C. § 1326(a), and the district court1 sentenced him to 41 months
imprisonment and 2 years supervised release. On appeal, counsel has moved to
withdraw and has filed a brief under Anders v. California, 386 U.S. 738 (1967),
arguing that the district court abused its discretion in sentencing Martinez-Herrera at
the top of the applicable Guidelines range.
1
The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.
We reject counsel’s argument because we do not review the district court’s
exercise of discretion in setting a sentence at the top of a properly determined
Guidelines range. See United States v. Smotherman, 326 F.3d 988, 989 (8th Cir.
2003) (per curiam); United States v. Woodrum, 959 F.2d 100, 101 (8th Cir. 1992)
(per curiam).
We have reviewed the record independently under Penson v. Ohio, 488 U.S.
75, 80 (1988), and we find no nonfrivolous issues. Accordingly, we grant counsel’s
motion to withdraw, and we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-2-