United States v. Wade Allen Wheat

1 The Honorable Charles R. Wolle, United States District Judge for the Southern
District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-2839
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Jorge Pesina-Cardenas, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 6, 2001
Filed: December 28, 2001
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Before WOLLMAN, Chief Judge, HANSEN, and RILEY, Circuit Judges.
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PER CURIAM.
Jorge Pesina-Cardenas pled guilty to reentering the United States illegally after
he had been convicted of an aggravated felony and deported, in violation of 8 U.S.C.
§ 1326(a) and (b)(2). The district court 1 sentenced him to 77 months imprisonment
and 3 years supervised release. On appeal, Pesina-Cardenas's counsel filed a brief
arguing the court should have granted a downward departure based upon cultural
assimilation and also moved to withdraw under Anders v. California, 386 U.S. 738
(1967). Pesina-Cardenas has not filed a pro se supplemental brief.

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The issue counsel raises is unreviewable because the district court
acknowledged that it had authority to depart but found that the facts did not support
a departure. See United States v. Correa, 167 F.3d 414, 417 (8th Cir. 1999).
We have independently reviewed the record in accordance with Penson v.
Ohio, 488 U.S. 75 (1988). Based on that review, we believe the district court should
have more clearly informed Pesina-Cardenas that his guilty plea had not yet been
accepted before the court informed him of his trial rights. See Fed. R. Crim. P.
11(c)(3). However, we do not believe what transpired during the plea hearing raises
any nonfrivolous issues for appeal.
Accordingly, we affirm the judgment of the district court, and we grant
counsel's motion to withdraw.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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