United States v. Guadalupe Perez-Cano

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-2964
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District
* of Nebraska.
Guadalupe Perez-Cano, *
* [UNPUBLISHED]
Appellant. *
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Submitted: January 22, 2002
Filed: January 29, 2002 (Corrected: 02/08/02)
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Before LOKEN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
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PER CURIAM.
Guadalupe Perez-Cano pleaded guilty to illegal reentry following deportation
after conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a), and the
district court1 sentenced him to 77 months imprisonment and 3 years supervised
release. On appeal, counsel has moved to withdraw under Anders v. California, 386
U.S. 738 (1967), and has filed a brief arguing that the court erred when it denied
Mr. Perez-Cano’s downward-departure motion.
1
The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska.
As the court “elect[ed] not to depart in this case,” and Mr. Perez-Cano does not
suggest the court acted with an unconstitutional motive, its discretionary decision not
to depart is unreviewable. See United States v. Johnson, 169 F.3d 569, 573 (8th Cir.
1999) (district court’s discretionary decision not to depart downward is reviewable
only if court acted with unconstitutional motive or believed it lacked authority to
depart); United States v. Field, 110 F.3d 587, 591-92 (8th Cir. 1997) (district court’s
conclusion “under the facts of this case” that downward departure was not warranted
fairly indicated it recognized its authority to depart) (internal quotations omitted).
Following our independent review, see Penson v. Ohio, 488 U.S. 75 (1988), we
find no nonfrivolous issues. Accordingly, we affirm and grant counsel’s motion to
withdraw.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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