United States v. Nilo Noriega-Millan ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1623
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Nilo Noriega-Millan, *
* [UNPUBLISHED]
Appellant. *
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Submitted: August 16, 2010
Filed: August 19, 2010
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Before WOLLMAN, LOKEN, and MELLOY, Circuit Judges.
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PER CURIAM.
Nilo Noriega-Millan pleaded guilty to unlawful reentry, in violation of 8 U.S.C.
§ 1326(a) and (b)(2). The district court1 sentenced him to 77 months in prison and 2
years of supervised release. On appeal, his counsel has moved to withdraw and has
filed a brief under Anders v. California, 386 U.S. 738 (1967), challenging the
reasonableness of the sentence and the court’s consideration of the 18 U.S.C.
§ 3553(a) factors. Noriega-Millan has filed a pro se supplemental brief, arguing that
1
The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
his counsel was ineffective and that the court did not adequately consider mitigating
circumstances.
We conclude that the district court committed no procedural error and imposed
a substantively reasonable sentence. See Gall v. United States, 552 U.S. 38, 51 (2007)
(in reviewing sentence, appellate court first ensures that district court committed no
significant procedural error, then considers substantive reasonableness of sentence
under abuse-of-discretion standard; if sentence is within applicable Guidelines range,
appellate court may apply presumption of reasonableness); United States v. Haack,
403 F.3d 997, 1004 (8th Cir. 2005) (describing abuse of discretion). We decline to
consider the ineffective-assistance claim on direct appeal. See United States v. Cain,
134 F.3d 1345, 1352 (8th Cir. 1998).
Having reviewed the record under Penson v. Ohio, 488 U.S. 75 (1988), we have
found no nonfrivolous issues. Accordingly, we grant counsel’s motion to withdraw,
and we affirm.
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