United States v. Juan Suarez-Avalos , 191 F. App'x 513 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-2447
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Juan Carlos Suarez-Avalos, *
* [UNPUBLISHED]
Appellant. *
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Submitted: July 21, 2006
Filed: August 8, 2006
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Before MURPHY, BYE, and MELLOY, Circuit Judges.
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PER CURIAM.
Juan Carlos Suarez-Avalos (Suarez) appeals the 50-month prison sentence the
district court1 imposed upon his plea of guilty to illegal reentry into the United States
after he had previously been deported, in violation of 8 U.S.C. § 1326(a). On appeal,
counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S.
738 (1967).
1
The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa.
The district court’s calculation of Suarez’s Guidelines sentencing range
included two criminal-history points assessed because Suarez was on parole when he
committed the instant offense. Suarez argues the assessment of these points violated
his Fifth and Sixth Amendment rights because the fact he was on parole was not
charged in his indictment and proven to a jury beyond a reasonable doubt.
Suarez’s argument is without merit. First, this circuit has rejected the argument
that sentencing factors must be charged in a criminal indictment. See United States
v. Thomas, 398 F.3d 1058, 1063 (8th Cir. 2005) (sentencing factor does not need to
be pled in indictment or put before jury). Second, the criminal-history points were
assessed based on the admission of Suarez’s attorney that Suarez was on parole. See
Blakely v. Washington, 542 U.S. 296, 303-04 (2004) (sentence may be imposed by
judge if it is based solely on facts “admitted by the defendant”); United States v.
McCully, 407 F.3d 931, 933 (8th Cir. 2005) (Sixth Amendment rights are not violated
when sentence is enhanced based on admission of facts supporting enhancement).
Having reviewed the record under Penson v. Ohio, 488 U.S. 75, 80 (1988), we
conclude there are no nonfrivolous issues. Accordingly, we affirm the district court’s
judgment, and we grant counsel leave to withdraw.2
______________________________
2
Counsel is reminded that his duty to represent the defendant does not end until
he has fulfilled his obligation to "promptly advise the defendant of the procedures for
filing a petition for a writ of certiorari pro se" in accordance with the Amendment to
Part V of the Plan to Implement the Criminal Justice Act of 1964.
-2-