United States v. Israel Ayala-Gomez

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3840
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Israel Ayala-Gomez, *
* [UNPUBLISHED]
Appellant. *
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Submitted: November 27, 2009
Filed: November 27, 2009
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Before BYE, BOWMAN, and BENTON, Circuit Judges.
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PER CURIAM.
Israel Ayala-Gomez (Gomez) challenges the within-Guidelines sentence
imposed by the district court1 after he pled guilty to illegally re-entering the United
States after being deported, in violation of 8 U.S.C. § 1326(a), (b)(2), 6 U.S.C.
§ 202(3) & (4), and 6 U.S.C. § 557. On appeal, counsel has moved to withdraw and
filed a brief under Anders v. California, 386 U.S. 738 (1967), raising the issues of the
validity of Gomez’s guilty plea, the disposition of objections made to the pre-sentence
1
The Honorable Robert T. Dawson, United States District Judge for the Western
District of Arkansas.
investigation report (PSR), and whether the sentence imposed was substantively
unreasonable.
First, we discern no basis for finding Gomez’s plea invalid: Gomez may not
attack the voluntariness of his plea for the first time on appeal, see United States v.
Villareal-Amarillas, 454 F.3d 925, 932 (8th Cir. 2006); and we find no plain error in
the court’s decision not to use a Spanish-speaking interpreter during the plea hearing,
see United States v. Gonzales, 339 F.3d 725, 728-29 (8th Cir. 2003) (failure to raise
issue of interpreter at hearing results in plain error review; no plain error where lack
of interpreter did not affect defendant’s substantial rights). Second, we decline to
review the issue of the objections to the PSR. See United States v. Thompson, 289
F.3d 524, 526-27 (8th Cir. 2002) (declining to review district court’s findings related
to sentencing enhancement, drug quantity, and criminal history, even for plain error,
where defendant’s counsel withdrew objections to PSR at sentencing hearing and
asked for sentence at low end of Guidelines range).
Finally, we find no abuse of discretion in the district court’s decision to impose
the within-Guidelines sentence. See United States v. Feemster, 572 F.3d 455, 461 (8th
Cir. 2009) (en banc) (standard of review); Rita v. United States, 551 U.S. 338, 347-50
(2007) (approving appellate presumption of reasonableness for sentences within
properly calculated Guidelines range); United States v. Cadenas, 445 F.3d 1091, 1094
(8th Cir. 2006) (although sentence within applicable Guidelines range is presumed
reasonable, presumption may be rebutted by evidence that district court failed to
consider relevant factor, gave significant weight to improper or irrelevant factor, or
committed clear error of judgment).
After reviewing the record independently under Penson v. Ohio, 488 U.S. 75
(1988), we find no nonfrivolous issues for appeal. Accordingly, we affirm the
judgment of the district court, and we grant counsel’s motion to withdraw.
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