Duane Dewey Anderson v. Ind. School Dist. 97

1 The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2807
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Aurelio Lavariega-Diego, also known *
as Aurelio Lavariega, * [UNPUBLISHED]
*
Appellant. *
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Submitted: December 5, 2003
Filed: December 12, 2003
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Before BYE, BOWMAN, and MELLOY, Circuit Judges.
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PER CURIAM.
Aurelio Lavariega-Diego challenges the sentence the District Court 1 imposed
upon his guilty plea to illegally reentering the United States after deportation
following a conviction for aggravated domestic-abuse assault, in violation of 8 U.S.C.

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§ 1326(a)–(b) (2003). On appeal, his counsel has filed a brief and moved to withdraw
under Anders v. California, 386 U.S. 738 (1967).
On appeal, counsel argues that the sentence imposed was too harsh, because
Lavariego-Diego’s domestic-abuse history—which was the reason the District Court
gave for sentencing him at the top of the applicable Guidelines range—was fully
accounted for in his criminal history score and in the 16-level increase to his base
offense level. This argument fails. Lavariega-Diego’s sentence falls within 8 U.S.C.
§ 1326(b)’s 20-year maximum, it is within the appropriate Guidelines range, and we
will not review the sentence merely because it is at the top of the range. See United
States v. Smotherman, 326 F.3d 988, 989 (8th Cir.) (per curiam), cert. denied, 124
S. Ct. 293 (2003) (sentence at top of correct range does not create constitutional
infirmity allowing appellate review).
Having found no nonfrivolous issues after reviewing the record independently
under Penson v. Ohio, 488 U.S. 75 (1988), we affirm. We also grant counsel’s
motion to withdraw.
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