United States v. Hector Salmeron

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-3003
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Hector Salmeron, also known as Hector *
Vilatoro, also known as Hector *
Salmeron Villatoro, also known as * [UNPUBLISHED]
Hector Villatoro Salmeron, *
*
Appellant. *
___________
Submitted: June 16, 2006
Filed: June 16, 2006
___________
Before RILEY, MAGILL, and GRUENDER, Circuit Judges.
___________
PER CURIAM.
Hector Salmeron appeals the sentence the district court1 imposed after he
pleaded guilty to illegal reentry into the United States after deportation for an
aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2), and 6 U.S.C.
1
The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas.
§§ 202(3)-(4) and 557. On appeal, his counsel has moved to withdraw and filed a
brief under Anders v. California, 386 U.S. 738 (1967).
At the plea hearing, Salmeron was at first hesitant to plead guilty, claiming he
did not know what the charge was. He later stated that he would plead guilty to
reentering the United States without lawful consent after having been deported, but
expressed concern that the indictment took into account his past aggravated felony,
for which he had already been punished. Ultimately, Salmeron stated that he would
plead guilty to reentry, and the district court accepted his plea. With respect to the
advisory Sentencing Guidelines, Salmeron’s prior conviction for felony aggravated
assault resulted in both an offense-level enhancement and a higher criminal history
category. After considering the 18 U.S.C. § 3553(a) factors, the district court
sentenced Salmeron to 30 months in prison.
The Anders brief suggests that using Salmeron’s prior conviction to increase
both his offense level and his criminal history category is impermissible double-
counting; and that enhancing Salmeron’s sentence because of the prior conviction (for
which he has already been punished) violates the Double Jeopardy Clause. This
circuit’s precedent forecloses both contentions. See United States v. Sebastian, 436
F.3d 913, 917 (8th Cir. 2006) (double-counting); United States v. Thomas, 930 F.2d
12, 14 (8th Cir. 1991) (double jeopardy).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we conclude that Salmeron demonstrated a sufficient understanding of the
charge to make a valid plea. The record indicates that Salmeron’s hesitancy to plead
guilty was based upon his opposition to the increased penalties triggered by his past
aggravated felony conviction, but he clearly stated that he was pleading guilty to
entering the United States illegally after being deported, and he did not deny the prior
conviction. See 8 U.S.C. § 1326(a) (any alien who has been deported and thereafter
is found in the United States without the Attorney General’s express consent to
-2-
reapplication for admission shall be fined under Title 18 or imprisoned not more than
2 years or both); § 1326(b) (in case of illegal reentry, alien whose removal was
subsequent to conviction for aggravated felony shall be fined under Title 18,
imprisoned not more than 20 years, or both); United States v. Perez, 270 F.3d 737,
739-40 (8th Cir. 2001) (plea of guilty is constitutionally valid only if it is made
voluntarily and intelligently; plea is not made intelligently where defendant is not
given notice of true nature of charge; district court must inform defendant of, and
determine he understands, nature of charge), cert. denied, 535 U.S. 945 (2002).
We find no other nonfrivolous issues. Accordingly, we affirm. We also grant
counsel’s motion to withdraw.
______________________________
-3-