United States v. Cesar A Cortez-Rocha

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3242
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Cesar Antonio Cortez-Rocha, * Western District of Arkansas.
*
Appellant. * [UNPUBLISHED]
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Submitted: September 7, 2004
Filed: September 15, 2004
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Before MURPHY, FAGG, and SMITH, Circuit Judges.
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PER CURIAM.
Cesar Antonio Cortez-Rocha (Cortez) pleaded guilty to illegal reentry after
deportation following an aggravated-felony conviction, in violation of 8 U.S.C.
§ 1326(a) and (b)(2). The district court1 sentenced him to 77 months imprisonment
and 3 years supervised release. On appeal, Cortez’s counsel has moved to withdraw
under Anders v. California, 386 U.S. 738 (1967), and has filed a brief in which he
argues that (1) the sentence imposed for Cortez’s 2001 Arkansas conviction for
criminal impersonation should not have been counted in his criminal history score,
1
The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
(2) the district court should have departed downward because Cortez’s criminal
history score was overstated, and (3) trial counsel was ineffective.
After careful review, we find that counsel’s arguments lack merit. Cortez has
not shown plain error in the district court’s inclusion of his criminal-impersonation
sentence in his criminal history score: the sentence included 37 days in jail, and
Cortez has not shown that the jail time was imposed for any reason other than the
criminal conviction or for his related contempt of court. See United States v. Evans,
285 F.3d 664, 674 (8th Cir. 2002) (standard of review), cert. denied, 537 U.S. 1196
(2003); U.S.S.G. § 4A1.2(c)(1) (sentences for certain offenses, including giving false
information to police officer and contempt of court, and those similar to them, do not
count in criminal history score unless defendant receives at least 1 year probation or
30 days imprisonment, or unless such prior offense is similar to instant offense).
Further, Cortez waived his downward-departure argument by failing to move for
departure in the district court, see United States v. Murphy, 248 F.3d 777, 779-80 (8th
Cir. 2001), and Cortez’s ineffective-assistance claim would be more properly raised
in postconviction proceedings, see United States v. Smith, Nos. 03-2862, 03-3494,
2004 WL 1737335, at *1 (8th Cir. Aug. 4, 2004).
Following our independent review, see Penson v. Ohio, 488 U.S. 75 (1988), we
find no nonfrivolous issues. Accordingly, we affirm. We also grant counsel’s motion
to withdraw.
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