Marc Moore v. City of Sedalia etc.

1The HONORABLE RICHARD G. KOPF, Chief Judge, United States District
Court for the District of Nebraska.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-2196
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of Nebraska.
*
Elmer Duran-Varela, * [UNPUBLISHED]
*
Appellant. *
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Submitted: October 2, 2001
Filed: October 2, 2001
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Before LOKEN, FAGG, and MURPHY, Circuit Judges.
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PER CURIAM.
Elmer Duran-Varela 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 court 1 sentenced him to 41 months imprisonment and 3 years supervised
release. On appeal, counsel moved to withdraw under Anders v. California, 386 U.S.
738 (1967), and filed a brief arguing that Duran-Varela should have received a
downward departure because his previous aggravated felony conviction for
aggravated battery was not serious.

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-2-
The district court’s decision was clearly an exercise of discretion not to depart
under the circumstances in this case. The court’s decision is therefore unreviewable.
See United States v. Orozco-Rodriguez, 220 F.3d 940, 942 (8th Cir. 2000).
Moreover, 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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