Darrell T. Kind v. Sheriff Frank

1 The HONORABLE JAMES M. ROSENBAUM, Chief Judge, United States
District Court for the District of Minnesota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-3575
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Antonio Villanueva-Basurto, also *
known as Antonio Basurto Villanueva, * [UNPUBLISHED]
also known as Miguel Rivera Monrroy, *
*
Appellant. *
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Submitted: May 5, 2003
Filed: May 9, 2003
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Before LOKEN, Chief Judge, MORRIS SHEPPARD ARNOLD, and SMITH, Circuit
Judges.
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PER CURIAM.
Antonio Villanueva-Basurto pleaded guilty to illegal reentry after deportation
following 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. On appeal, counsel
moved to withdraw under Anders v. California, 386 U.S. 738 (1967), and filed a brief

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raising one argument: that application of 8 U.S.C. § 1326(b)’s enhanced penalties for
deportation after conviction for an aggravated felony violates the Sixth Amendment.
In a pro se supplemental brief, Villanueva-Basurto argues that his sentence is unfair,
because he did not know he was breaking the law by returning to the United States
and his family needs him.
We reject both arguments. First, we previously have held that the penalties in
section 1326(b) do not violate the Sixth Amendment. See United States v. Kempis-
Bonola, 287 F.3d 699, 701-02 (8th Cir.), cert. denied, 123 S. Ct. 295 (2002). Second,
this court does not review the extent of the district court’s downward departure, see
United States v. McFarlane, 309 F.3d 510, 516 (8th Cir. 2002), and in any event,
Villanueva-Basurto stipulated in his plea agreement to a sentence greater than the one
he received, see United States v. Nguyen, 46 F.3d 781, 783 (8th Cir. 1995).
Further, having reviewed the record independently under Penson v. Ohio, 488
U.S. 75 (1988), 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.

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