United States v. Merlin Alvarez-Diaz ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-1319
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * Distict Court for the Eastern
* District of Missouri.
Merlin Osmar Alvarez-Diaz, *
* [UNPUBLISHED]
Appellant. *
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Submitted: September 7, 2001
Filed: September 25, 2001
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Before BOWMAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Merlin Osmar Alvarez-Diaz, a Mexican citizen, appeals the sentence of
60 months imprisonment and 3 years supervised release imposed on him by the district
court1 after he pleaded guilty to illegal reentry following deportation, in violation of 8
U.S.C. § 1326(a) and (b)(2). On appeal, counsel moved to withdraw under Anders v.
California, 386 U.S. 738 (1967), and filed a brief arguing that U.S.S.G.
§ 2L1.2(b)(1)(A) (16-level increase if defendant was deported after aggravated-felony
1
The Honorable Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri.
conviction) is inflexibly harsh given the lack of seriousness of Mr. Alvarez-Diaz’s prior
convictions, that counsel should have requested a downward departure, and that the
court should have departed sua sponte.
We reject these arguments seriatim. First, there is no jurisdictional basis for
review of a sentence on the ground that it is too harsh. See 18 U.S.C. §3742(a)
(grounds for appeal of sentence by defendant). Second, Mr. Alvarez-Diaz’s suggestion
that counsel was ineffective should be raised in a 28 U.S.C. § 2255 proceeding, if at
all. See United States v. Cain, 134 F.3d 1345, 1352 (8th Cir. 1998). Third, the district
court did not plainly err by not departing on its own accord. See United States v.
Montgomery, Nos. 98-4688/4691/4816/ 4689/4692/4690/4693, 2001 WL 810346, at
*15 n.6 (4th Cir. July 17, 2001). In any event, because Mr. Alvarez-Diaz had
additional prior felony convictions, he could not be considered for the kind of departure
he now seeks. See U.S.S.G. § 2L1.2, comment. (n.5) (downward departure may be
warranted based on seriousness of aggravated felony if, inter alia, defendant has
previously been convicted of only one felony offense).
Having reviewed the record independently pursuant to Penson v. Ohio, 488 U.S.
75 (1988), we have found no nonfrivolous issues for appeal.
Accordingly, we grant counsel’s motion to withdraw and we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT
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