David Williams v. Scott Horner

1The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1646
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Gilberto Aguilar-Pena, *
* [UNPUBLISHED]
Appellant. *
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Submitted: October 26, 2010
Filed: November 8, 2010
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Before BYE, BOWMAN, and COLLOTON, Circuit Judges.
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PER CURIAM.
A jury found Gilberto Aguilar-Pena guilty of being an alien found unlawfully
in the United States after having been deported following a felony drug conviction,
in violation of 8 U.S.C. § 1326(a) and (b)(1). The district court 1 sentenced him within
the calculated advisory Guidelines range to 41 months in prison and 3 years of
supervised release, and ordered him to pay a fine of $2,500. His counsel has moved
to withdraw and has filed a brief under Anders v. California, 386 U.S. 738 (1967),
asserting that the district court committed reversible error by not excusing the venire

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panel after informing the panel that Aguilar-Pena was not a citizen. In addition,
Aguilar-Pena has filed a pro se notice of appeal which mentions an evidentiary ruling
and his sentence.
We conclude that the district court did not commit reversible error in declining
to excuse the venire panel. See United States v. Urqhart, 469 F.3d 745, 747, 749 (8th
Cir. 2006) (no abuse of discretion in denying motion for mistrial after court stated that
defendant was from Canada). Further, to the extent Aguilar-Pena challenges the
district court’s ruling excluding as irrelevant certain evidence related to his reason for
reentering the United States, we conclude that the district court did not abuse its
discretion in excluding the evidence. We also conclude that the within-Guidelines-
range sentence did not result from any procedural error and is not substantively
unreasonable. See generally United States v. Feemster, 572 F.3d 455, 461, 464 (8th
Cir. 2009) (en banc). Finally, having reviewed the record independently under Penson
v. Ohio, 488 U.S. 75, 80 (1988), we find no nonfrivolous issue for appeal.
Accordingly, we grant counsel’s motion to withdraw, and we affirm the judgment of
the district court.
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