United States v. Hernandez-Avalon ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 99-1942MN
_____________
United States of America, *
*
Appellee, * On Appeal from the United
* States District Court
v. * for the District of
* Minnesota.
Miguel Hernandez-Avalon, also known *
as Rolando Torres, also known as * [Not to be Published]
Edwardo Rivera, *
*
Appellant. *
___________
Submitted: September 1, 1999
Filed: September 15, 1999
___________
Before McMILLIAN, BRIGHT, and RICHARD S. ARNOLD, Circuit Judges.
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PER CURIAM.
Miguel Hernandez-Avalon challenges the sentence imposed by the District
Court1 after he pleaded guilty to illegal re-entry into the United States after deportation,
in violation of 8 U.S.C. § 1326(b)(2). Counsel has filed a brief and moved to withdraw
pursuant to Anders v. California, 386 U.S. 738 (1967). Although we granted
Hernandez-Avalon permission to file a pro se supplemental brief, he has not done so.
1
The Honorable Paul A. Magnuson, Chief Judge, United States District Court
for the District of Minnesota.
Counsel argues that the District Court erred by failing to grant a downward
departure under U.S. Sentencing Guidelines Manual § 2L1.2 comment. (n.5) (1997).
In denying the requested departure, the Court noted that Hernandez-Avalon’s case
involved “multiple re-entries, as well as a substantial criminal history score,” and “fit
within the heartland” of cases taken into account by the Sentencing Commission. See
United States v. Diaz-Diaz, 135 F.3d 572, 581 n.7 (8th Cir. 1998) (pattern of illegal
entry into the United States and commission of criminal conduct demonstrates offense
is within heartland of cases to which § 2L1.2(b) enhancement was intended to apply).
The Court’s discretionary decision to deny the requested departure is unreviewable.
See United States v. Turechek, 138 F.3d 1226, 1228 (8th Cir. 1998) (when court
considers and rejects motion for downward departure, decision is unreviewable so long
as court was aware of its authority to depart downward).
After review of counsel’s Anders brief, along with our independent review of the
record in accordance with Penson v. Ohio, 488 U.S. 75 (1988), we find no nonfrivolous
issues. Accordingly, we affirm the judgment of the District Court, and we grant
counsel’s motion to withdraw.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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