Lance Milliman v. Betty Jean Lindemoen

1The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-3076
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Alfredo Silva, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: July 24, 2006
Filed: July 27, 2006
___________
Before SMITH, MAGILL, and BENTON, Circuit Judges.
___________
PER CURIAM.
Alfredo Silva appeals the sentence the district court 1 imposed upon his guilty
plea to reentering the United States illegally after having been deported following a
conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). His
counsel has moved to withdraw and has filed a brief under Anders v. California, 386
U.S. 738 (1967).

-- 1 of 2 --

-2-
Counsel argues the sentence is unreasonable because of several mitigating
factors which call for a sentence below the 41-month prison sentence imposed by the
district court. We disagree. First, the district court discussed Silva’s criminal history
and the need to provide adequate deterrence. Both of these factors are listed in 18
U.S.C. § 3553(a) as relevant sentencing considerations, and they support the
reasonableness of the district court’s sentence. See United States v. Long Soldier, 431
F.3d 1120, 1123 (8th Cir. 2005) (relevant inquiry is whether district court considered
§ 3553(a) factors and whether appellate court’s review of those factors leads to
conclusion that they support reasonableness of sentencing decision).
Second, the sentence was within the undisputed advisory Guidelines range, and
Silva has not rebutted the presumption of reasonableness. See United States v.
Lincoln, 413 F.3d 716, 717-18 (8th Cir.), cert. denied, 126 S. Ct. 840 (2005); United
States v. Tobacco, 428 F.3d 1148, 1151 (8th Cir. 2005). Silva argues that he should
be granted leniency based on the disadvantages he may suffer in prison as an illegal
alien, and based on sentencing disparities for illegal-reentry cases within different
judicial districts. He did not raise these matters to the district court at sentencing, and
in any event, they do not make his sentence unreasonable. See United States v.
Sebastian, 436 F.3d 913, 915-16 (8th Cir. 2006) (sentencing disparity resulting from
fact that “fast-track” programs were available for those convicted of immigration
offenses in certain judicial districts, but not to defendant, did not render his sentence
unreasonable); cf. United States v. Cardosa-Rodriguez, 241 F.3d 613, 613-614 (8th
Cir. 2001) (deportable aliens’ ineligibility for Bureau of Prisons benefits does not
provide basis for downward departure in illegal-reentry cases).
Having reviewed the record under Penson v. Ohio, 488 U.S. 75, 80 (1988), we
conclude there are no nonfrivolous issues. Accordingly, we affirm the district court’s
judgment, and we grant counsel leave to withdraw.
______________________________

-- 2 of 2 --