United States v. Sergio Rico-Mendoza ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-1448
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Sergio Rico-Mendoza, *
* [UNPUBLISHED]
Appellant. *
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Submitted: July 7, 2009
Filed: July 9, 2009
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Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Sergio Rico-Mendoza pleaded guilty to being an alien found knowingly and
unlawfully in the United States after having been removed in 2003 subsequent to a
felony conviction for aggravated assault, in violation of 8 U.S.C. § 1326(a), (b)(2).
The district court1 sentenced him within the advisory Guidelines range to 41 months
in prison. On appeal, his counsel has moved to withdraw and filed a brief under
Anders v. California, 386 U.S. 738 (1967), arguing that the sentence is greater than
necessary to comply with the purposes of 18 U.S.C. § 3553(a), and thus unreasonable.
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
He contends that the district court insufficiently considered that the prior assault
conviction--while qualifying as a felony crime of violence under the Guidelines--was
only an aggravated misdemeanor under Iowa law and was much less serious than
many other types of convictions that would result in the same 16-level enhancement
under U.S.S.G. § 2L1.2.
We conclude that the sentence is not unreasonable. See United States v.
Toothman, 543 F.3d 967, 970 (8th Cir. 2008) (assessing reasonableness of sentence
under abuse-of-discretion standard; within-Guidelines-range sentence is accorded
presumption of reasonableness on appeal); see also Rita v. United States, 551 U.S.
338, 341 (2007) (allowing appellate presumption of reasonableness). The record
shows that the district court expressly considered relevant factors under § 3553(a), had
before it uncontested information about Rico-Mendoza’s criminal history, and heard
defense counsel’s arguments regarding the prior assault conviction at sentencing.
Further, nothing in the record suggests that the court misapplied the section 3553(a)
factors. See 18 U.S.C. § 3553(a)(1), (a)(2)(A)-(C) (court should consider nature and
circumstances of offense, history and characteristics of defendant, and need for
sentence to reflect seriousness of offense, promote respect for law, provide just
punishment, afford adequate deterrence, and protect public); United States v. Haack,
403 F.3d 997, 1004 (8th Cir. 2005) (listing circumstances that may warrant finding
of abuse of discretion).
Finally, after reviewing the record independently under Penson v. Ohio, 488
U.S. 75, 80 (1988), we have found no nonfrivolous issues for appeal. Accordingly,
we grant counsel’s motion to withdraw, and we affirm.
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