United States v. Mario Ortega-Ibarra , 53 F. App'x 392 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2825
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Southern
v. * District of Iowa.
*
Mario Antonio Ortega-Ibarra, * [UNPUBLISHED]
*
Appellant. *
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Submitted: December 3, 2002
Filed: December 16, 2002
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Before LOKEN, FAGG, and MURPHY, Circuit Judges.
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PER CURIAM.
Mario Antonio Ortega-Ibarra pleaded guilty to reentering the United States
illegally after having been convicted of an aggravated felony and deported, in
violation of 8 U.S.C. § 1326(a) and (b)(2). At sentencing, the district court* denied
Ortega-Ibarra's motion for a downward departure based on cultural assimilation and
sentenced him to 70 months imprisonment and three years supervised release.
*
The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
On appeal, Ortega-Ibarra's counsel has filed a brief and moved to withdraw
under Anders v. California, 386 U.S. 738 (1967). Counsel contends the district court
abused its discretion in denying the downward-departure motion. We conclude the
ruling is unreviewable because the district court acknowledged it had discretion to
depart. See United States v. Correa, 167 F.3d 414, 417 (8th Cir. 1999). On
independent review of the record under Penson v. Ohio, 488 U.S. 75 (1988), we find
no nonfrivolous issues. Accordingly, we affirm. We also grant counsel's motion to
withdraw.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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