United States v. Franklin Mendez Alvarado

United States Court of Appeals For the Eighth Circuit ___________________________ No. 16-3648 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Franklin Alberto Mendez Alvarado lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the Southern District of Iowa - Davenport ____________ Submitted: May 10, 2017 Filed: May 15, 2017 [Unpublished] ____________ Before LOKEN, MURPHY, and BENTON, Circuit Judges. ____________ PER CURIAM. Franklin Alberto Mendez Alvarado pled guilty to illegally re-entering the United States as a previously deported alien, subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). His counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), challenging his sentence, suggesting that an error under Federal Rule of Criminal Procedure 11(b)(1)(B) occurred during the change-of-plea hearing, and asserting that the district court1 did not use the correct Guidelines Manual for sentencing purposes. Having jurisdiction under 28 U.S.C. § 1291, this court affirms. Upon careful review, this court concludes that the issues raised by counsel lack merit. See United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004) (plain-error standard applies where Rule 11 error was not preserved by timely objection; defendant must show that, but for such error, he would not have entered plea); U.S.S.G. § 1B1.11 (court shall use Guidelines Manual in effect on date defendant is sentenced, unless that edition violates ex post facto clause). Having independently reviewed the record pursuant to Penson v. Ohio, 488 U.S. 75 (1988), this court finds no non- frivolous issues for appeal. The judgment is affirmed, and counsel’s motion to withdraw is granted. ______________________________ 1 The Honorable Stephanie M. Rose, United States District Judge for the Southern District of Iowa. -2-