United States v. Cesar Lupian-Barajas , 58 F. App'x 237 ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-2777
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Cesar Lupian-Barajas, also known as *
Cesar Lupian Perez, also known as * [UNPUBLISHED]
Lupian Cesar, *
*
Appellant. *
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Submitted: January 7, 2003
Filed: January 14, 2003
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Before McMILLIAN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
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PER CURIAM.
Cesar Lupian-Barajas pleaded guilty to illegal reentry following his conviction
for a crime of violence and deportation, in violation of 8 U.S.C. § 1326(a) and (b).
During the plea hearing defense counsel predicted a sentencing range of 70 to 87
months; the magistrate judge1 acknowledged counsel’s expertise with the Sentencing
1
The Honorable Paul A. Zoss, United States Magistrate Judge for the Northern
District of Iowa, to whom the case was referred by consent of the parties for
Guidelines, and stated that counsel’s prediction was not binding but was a “pretty
good indicator of what’s likely to happen.” The later-calculated range was 77 to 96
months, and the district court2 imposed a sentence of 90 months imprisonment and
2 years supervised release. On appeal, counsel has moved to withdraw and filed a
brief under Anders v. California, 386 U.S. 738 (1967), arguing the guilty plea was
rendered involuntary because Mr. Lupian-Barajas was led to believe he would be
sentenced within a lower Guidelines range.
We disagree, noting that the magistrate judge informed Mr. Lupian-Barajas of
the statutory maximum sentence, and clearly warned him that the district court was
not bound by defense counsel’s prediction. See United States v. Granados, 168 F.3d
343, 345 (8th Cir. 1999) (defendant’s reliance on attorney’s mistaken impression
about length of sentence is insufficient to render plea involuntary as long as court
informed defendant of maximum possible sentence). Upon reviewing the record
independently under Penson v. Ohio, 488 U.S. 75 (1988), we have found 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.
proceedings required by Fed. R. Crim. P. 11.
2
The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.
-2-