USA v. Burns

1The HONORABLE CHARLES R. WOLLE, United States District Judge for
the Southern District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-1001
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Southern
v. * District of Iowa.
*
Jose Carmen Estrada-Vega, * [UNPUBLISHED]
*
Appellant. *
___________
Submitted: September 7, 2001
Filed: September 26, 2001
___________
Before BOWMAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Jose Carmen Estrada-Vega, a Mexican citizen, pleaded guilty to illegal reentry
following deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). After determining
his offense level under § 2L1.2 of the Guidelines, the district court1 sentenced Estrada-
Vega to 41 months in prison and two years supervised release. He appeals that
sentence. Appellate counsel moved to withdraw under Anders v. California, 386 U.S.
738 (1967), and filed a brief arguing that Estrada-Vega was entitled to a downward

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departure because, as an illegal alien, he would receive disparate treatment from the
Bureau of Prisons; because his prior aggravated felony was not serious; and because
he is culturally assimilated in the United States.
As the district court assumed that it had authority to depart on the requested
grounds as a matter of law, but found no factual basis to depart, the court’s
discretionary decision is unreviewable. See United States v. Orozco-Rodriguez, 220
F.3d 940, 942 (8th Cir. 2000). In addition, we note “that a defendant’s alien status,
without more, cannot take his case outside the heartland of cases under section 2L1.2.”
United States v. Cardosa-Rodriguez, 241 F.3d 613 (8th Cir. 2001).
Our independent review of the record has revealed no other nonfrivolous issues.
See Penson v. Ohio, 488 U.S. 75 (1988). Accordingly, we grant counsel’s motion to
withdraw and affirm.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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