United States v. Jorge Aguilar-Neri ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-1002
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Jorge Aguilar-Neri, also known as *
Transitro Lopez, also known as Pedro * [UNPUBLISHED]
Soria, *
*
Appellant. *
___________
Submitted: July 5, 2001
Filed: July 16, 2001
___________
Before BOWMAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
___________
PER CURIAM.
Jorge Aguilar-Neri pleaded guilty to a one-count indictment charging him with
being found in the United States after previously having been deported, see 8 U.S.C.
§ 1326 (1994 & Supp. IV 1998). In his written plea agreement, and at his plea hearing,
Aguilar-Neri agreed that he had been deported previously for an aggravated felony and
acknowledged that, as a result, he faced an enhanced base offense level under U.S.
Sentencing Guidelines § 2L1.2(b)(1)(A). The District Court1 sentenced Aguilar-Neri
to fifty-seven months of imprisonment and two years of supervised release. On appeal,
counsel has filed a brief and moved to withdraw pursuant to Anders v. California, 386
U.S. 738 (1967), arguing only that the section 2L1.2(b)(1)(A) enhancement is too
harsh; in his pro se brief, Aguilar-Neri argues that his sentence exceeds the statutory
maximum for the basic crime of illegal reentry, in violation of Apprendi v. New Jersey,
530 U.S. 466 (2000), and raises two ineffective-assistance claims. We reject these
arguments.
The issue counsel raises on appeal is not a valid basis for review, see 18 U.S.C.
§ 3742(a) (1994), and Aguilar-Neri’s sentence did not violate Apprendi, see
Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998).
As to the ineffective-assistance claims, Aguilar-Neri argues (1) he was forced
to file a notice of appeal pro se because his counsel failed to do so at Aguilar-Neri’s
request; and (2) he was denied effective assistance of counsel because he was not
advised of his right to have counsel present at his presentence interview. Although we
normally do not address ineffective-assistance claims on appeal, we do so here because
the facts of the record demonstrate Aguilar-Neri cannot show the requisite prejudice
under Strickland v. Washington, 466 U.S. 668, 692 (1984). Cf. United States v. Ford,
918 F.2d 1343, 1350 (8th Cir. 1990) (addressing ineffective-assistance claim on direct
appeal where all relevant facts were known and government did not object). First, the
record shows that counsel filed and signed a timely notice of appeal on behalf of
Aguilar-Neri, and in any event, this appeal demonstrates that Aguilar-Neri was not
prejudiced by any failure on counsel’s part to file the notice. Second, to the extent
Aguilar-Neri had a Fifth Amendment right to have counsel present during his
1
The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.
-2-
presentence interview, he does not explain (nor can we discern) how he was
prejudiced.
Additionally, we have reviewed the record pursuant to Penson v. Ohio, 488 U.S.
75 (1988), and have found no nonfrivolous issues.
Accordingly, we grant counsel’s motion to withdraw and affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-