United States v. Otho Leonard Rater

1 The Honorable Ralph R. Erickson, United States District Judge for the District
of North Dakota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3066
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
Enrique Cahue-Rangel, also known as *
Antonio Diaz-Lopez, * [UNPUBLISHED]
*
Appellant. *
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Submitted: April 5, 2004
Filed: April 14, 2004
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Before MORRIS SHEPPARD ARNOLD, FAGG, and SMITH, Circuit Judges.
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PER CURIAM.
Enrique Cahue-Rangel appeals the sentence the district court 1 imposed when
he pleaded guilty to illegal reentry after deportation following a conviction for an
aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). Cahue-Rangel’s
counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S.

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-2-
738 (1967), contending that, for several reasons, the district court should have
granted Cahue-Rangel a downward departure.
We conclude, however, that the district court’s refusal to depart is
unreviewable because the court recognized its authority to depart and declined to do
so. See United States v. Koons, 300 F.3d 985, 993-94 (8th Cir. 2002).
After reviewing the record independently under Penson v. Ohio, 488 U.S. 75
(1988), we have found no nonfrivolous issues. Accordingly, we deny the
government’s motion to dismiss, grant counsel’s motion to withdraw, and affirm the
judgment.
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