United States v. E. Gonzalez-Gonzalez ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-3575
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Erasmo Gonzalez-Gonzalez, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: July 26, 2006
Filed: August 7, 2006
___________
Before MURPHY, BYE, and MELLOY, Circuit Judges.
___________
PER CURIAM.
Erasmo Gonzalez-Gonzalez pleaded guilty to illegally reentering the United
States after having been previously deported, in violation of 8 U.S.C. § 1326(a). At
sentencing the district court1 determined a Guidelines imprisonment range of 57-71
months, declined to depart downward from that range, and imposed a sentence of 57
months in prison and 3 years of supervised release. On appeal, counsel has moved to
withdraw and has filed a brief under Anders v. California, 386 U.S. 738 (1967),
arguing that the sentence is unreasonable given several bases for departure.
1
The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa.
First, Gonzalez-Gonzalez may not assign error based on the district court’s
denial of a downward departure, because the ruling was discretionary and not the
result of a mistaken belief that the court lacked authority to depart. See United States
v. Morell, 429 F.3d 1161, 1164 (8th Cir. 2005).
Second, the sentence is not unreasonable merely because of sentencing
differences among judicial districts in illegal-alien cases, or disadvantages Gonzalez-
Gonzalez may suffer in prison as an illegal alien. See United States v. Sebastian, 436
F.3d 913, 915-16 (8th Cir. 2006) (sentencing disparity resulting from fact that
“fast-track” programs were available for those convicted of immigration offenses in
certain judicial districts, but not to defendant, did not render his sentence
unreasonable); cf. United States v. Cardosa-Rodriguez, 241 F.3d 613, 613-614 (8th
Cir. 2001) (deportable aliens’ ineligibility for Bureau of Prisons benefits does not
provide basis for downward departure in illegal-reentry cases). We conclude nothing
in the record rebuts the presumption that this sentence, within the undisputed advisory
Guidelines range, is reasonable. See United States v. Tobacco, 428 F.3d 1148, 1151
(8th Cir. 2005).
Having carefully reviewed the record, we find no nonfrivolous issues for
appeal. See Penson v. Ohio, 488 U.S. 75, 80 (1988). Accordingly, we affirm the
district court’s judgment, and we grant counsel’s motion to withdraw.
______________________________
-2-