United States v. Reyes-Quijada

MEMORANDUM2

Leandro Reyes-Quijada appeals his conviction by guilty plea and 46-month sentence for one count of illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2).

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel for Reyes-Quijada has filed a brief stating that there are no arguable issues for review, and a motion to withdraw as counsel of record.

Counsel has identified and correctly rejected as potential issues for appeal the denial of downward departures based on (1) cultural assimilation; (2) “lesser harm” under U.S.S.G. § 5K2.11, p.s.; and (3) harsher treatment of aliens by the Bureau of Prisons. These bases for downward departure were not raised in the district court, and are therefore waived. United States v. Belden, 957 F.2d 671, 674-75 (9th Cir.1992).

Reyes-Quijada has filed a supplemental brief correctly pointing out factual errors in counsel’s brief, and raising several objections to the length of his sentence. The government responds that defendant waived his right to appeal.

The waiver of the right to appeal is dispositive unless the plea was not know*626ing and voluntary. United States v. Nguyen, 235 F.3d 1179, 1182 (9th Cir.2000). Reyes-Quijada does not contend that his plea was unknowing or involuntary, and there is no indication in the record that it was. The waiver of appeal is therefore enforceable. United States v. Anglin, 215 F.3d 1064, 1066 (9th Cir.2000).

Counsel’s motion to withdraw as counsel of record on appeal is GRANTED.

APPEAL DISMISSED.

. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.