United States v. A. Lavariega-Diego

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 03-2807 ___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the Northern * District of Iowa. Aurelio Lavariega-Diego, also known * as Aurelio Lavariega, * [UNPUBLISHED] * Appellant. * ___________ Submitted: December 5, 2003 Filed: December 12, 2003 ___________ Before BYE, BOWMAN, and MELLOY, Circuit Judges. ___________ PER CURIAM. Aurelio Lavariega-Diego challenges the sentence the District Court1 imposed upon his guilty plea to illegally reentering the United States after deportation following a conviction for aggravated domestic-abuse assault, in violation of 8 U.S.C. 1 The Honorable Mark W. Bennett, Chief Judge, United States District Court for the Northern District of Iowa. § 1326(a)–(b) (2003). On appeal, his counsel has filed a brief and moved to withdraw under Anders v. California, 386 U.S. 738 (1967). On appeal, counsel argues that the sentence imposed was too harsh, because Lavariego-Diego’s domestic-abuse history—which was the reason the District Court gave for sentencing him at the top of the applicable Guidelines range—was fully accounted for in his criminal history score and in the 16-level increase to his base offense level. This argument fails. Lavariega-Diego’s sentence falls within 8 U.S.C. § 1326(b)’s 20-year maximum, it is within the appropriate Guidelines range, and we will not review the sentence merely because it is at the top of the range. See United States v. Smotherman, 326 F.3d 988, 989 (8th Cir.) (per curiam), cert. denied, 124 S. Ct. 293 (2003) (sentence at top of correct range does not create constitutional infirmity allowing appellate review). Having found no nonfrivolous issues after reviewing the record independently under Penson v. Ohio, 488 U.S. 75 (1988), we affirm. We also grant counsel’s motion to withdraw. ______________________________ -2-