United States v. Noel Flores-Garcia ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-4158
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa
Noel Flores-Garcia, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: August 7, 2000
Filed: August 14, 2000
___________
Before McMILLIAN, BRIGHT, and FAGG, Circuit Judges.
___________
PER CURIAM.
Noel Flores-Garcia appeals from the final judgment entered in the District Court1
for the Southern District of Iowa upon his guilty plea to a charge of illegal re-entry into
the United States after deportation, in violation of 8 U.S.C. § 1326. The district court
sentenced appellant to fifty-seven months imprisonment and two years supervised
release. On appeal, appellant’s counsel has filed a brief and moved to withdraw
pursuant to Anders v. California, 386 U.S. 738 (1967). For reversal, appellant argues
1
The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
that the district court should have granted him a downward departure on the grounds
of cultural assimilation and disparate treatment of deportable aliens, and that he was not
advised of his right under the Vienna Convention on Consular Relations to contact his
consul. For the reasons discussed below, we affirm the judgment of the district court.
We are satisfied from our review of the record that the district court recognized
its authority to depart from the Guidelines on the grounds asserted by Flores-Garcia,
and its discretionary decision not to depart is therefore unreviewable. See United
States v. Turechek, 138 F.3d 1226, 1228 (8th Cir. 1998). The failure to advise Flores-
Garcia of his right under the Vienna Convention is not a jurisdictional defect and was
therefore foreclosed by his guilty plea. See United States v. Guzman-Landeros, 207
F.3d 1034, 1035 (8th Cir. 2000) (per curiam).
We have reviewed the record independently pursuant to Penson v. Ohio, 488
U.S. 75 (1988), and we have found 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.
-2-