United States v. Earnest Washington

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-2397
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Abel Cisneros-Gallegos, also known as *
Javier Favela, also known as Alfredo * [UNPUBLISHED]
Andrade-Cisneros, *
*
Appellant. *
___________
Submitted: January 6, 2003
Filed: January 8, 2003
___________
Before LOKEN, FAGG, and MURPHY, Circuit Judges.
___________
PER CURIAM.
Abel Cisneros-Gallegos pleaded guilty to illegal reentry following deportation
after conviction for an aggravated felony, in violation of 8 U.S.C. § 1326. At
sentencing, Cisneros-Gallegos moved for downward departure, arguing that his
criminal history score overrepresented his actual criminal history, and that his base
offense level should not have been increased by 12 levels for a prior drug conviction.

-- 1 of 2 --

1 The HONORABLE RICHARD G. KOPF, Chief Judge, United States District
Court for the District of Nebraska.
-2-
The district court 1 denied the motions and sentenced Cisneros-Gallegos to 46 months
imprisonment and 3 years supervised release. On appeal, counsel has moved to
withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), raising
as possible issues the denial of the departure motions.
We do not review the denial of Cisneros-Gallegos’s downward-departure
motions. The district court explicitly acknowledged its authority to depart with
regard to one motion, and there is no indication that the court believed it lacked
authority to depart with respect to the other. See United States v. Koons, 300 F.3d
985, 993-94 (8th Cir. 2002); United States v. Lopez-Arce, 267 F.3d 775, 783-84 (8th
Cir. 2001). Further, we have reviewed the record under Penson v. Ohio, 488 U.S. 75,
80 (1988), and we find no nonfrivolous issues.
Accordingly, we grant counsel’s motion to withdraw, and we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

-- 2 of 2 --