United States v. Jose Lopez-Rodriguez ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3363
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
Jose Lopez-Rodriguez, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 5, 2009
Filed: February 25, 2009
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Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.
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PER CURIAM.
A jury found Jose Lopez-Rodriguez guilty of illegally reentering the United
States after having been deported. The district court1 sentenced him to 63 months in
prison and 3 years of supervised release. On appeal, counsel has moved to withdraw,
and in a brief filed under Anders v. California, 386 U.S. 738 (1967), he argues that (1)
the district court erred in adding language to the theory-of-defense instruction, and (2)
the sentence was unreasonable. We affirm.
1
The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
The only issue at trial was whether Lopez-Rodriguez had previously been
deported. He requested an instruction informing the jury that illegal reentry required
proof that he had been previously physically removed from the United States. The
court agreed to give the instruction, but added language--over Lopez-Rodriguez’s
objection--indicating that the jury should consider all of the evidence, and that the
government was not required to present a witness to testify that he or she personally
watched the defendant cross the border into Mexico. The district court did not abuse
its discretion in adding the foregoing language to the jury instruction. See United
States v. Aleman, 548 F.3d 1158, 1166 (8th Cir. 2008) (this court reviews jury
instructions for abuse of discretion and will affirm so long as instructions, taken as
whole, fairly and adequately submitted issues to jury); United States v. Davis, 534
F.3d 903, 913 (8th Cir. 2008) (government’s case may be based on circumstantial
evidence), petition for cert. filed, (U.S. Jan. 15, 2009) (No. 08-8267).
We also find that the sentence, which was at the bottom of the Guidelines range,
was not unreasonable. See United States v. Bonahoom, 484 F.3d 1003, 1005 (8th Cir.
2007) (per curiam) (reasonableness of sentence is reviewed for abuse of discretion);
United States v. Lincoln, 413 F.3d 716, 717 (8th Cir. 2005) (sentence within advisory
Guidelines range is presumptively reasonable on appeal). The district court properly
discussed the factors it was to consider in imposing the sentence and carefully
weighed those factors. See United States v. Boss, 493 F.3d 986, 987 (8th Cir. 2007)
(discussing abuse-of-discretion standard).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75
(1988), we have found no non-frivolous issues. Accordingly, the judgment is
affirmed. We also grant counsel’s motion to withdraw on the condition that counsel
inform appellant about the procedures for filing petitions for rehearing and for
certiorari.
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