Terry Harrington v. City of Council Bluffs

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2736
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Alejandro Lopez-Zenteno, also known *
as Alex Lopez, also known as Jose * [UNPUBLISHED]
Ramirez Perez, *
*
Appellant. *
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Submitted: April 19, 2012
Filed: April 23, 2012
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Before LOKEN, BOWMAN, and BENTON, Circuit Judges.
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PER CURIAM.
Alejandro Lopez-Zenteno appeals the 24-month prison sentence imposed upon
him by the district court after he pled guilty to unlawful re-entry after removal, in1
violation of 8 U.S.C. § 1326(a), (b)(2) and 6 U.S.C. §§ 202 and 557. After
calculating an advisory Guidelines range of 46-57 months in prison, the district court
considered the mitigating factors presented by Lopez-Zenteno – most specifically,
The Honorable Joan N. Ericksen, United States District Judge for the District1
of Minnesota.

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that he had demonstrated positive change – and sentenced Lopez-Zenteno below the
Guidelines range, to 24 months in prison and 3 years of supervised release. Lopez-
Zenteno’s counsel has filed a brief under Anders v. California, 368 U.S. 738 (1967),
and seeks leave to withdraw. Counsel argues that the district court’s sentence was
greater than necessary to accomplish the goals of sentencing and therefore was
substantively unreasonable.
This court concludes that the district court imposed a substantively reasonable
sentence. See United States v. Elodio-Benitez, 2012 WL 686194, at *1 (8th Cir. Mar.
5, 2012) (rejecting substantive reasonableness challenge to “significant downward
variance” in sentencing illegal re-entry defendant). As noted in Elodio-Benitez,
“‘where a district court has sentenced a defendant below the advisory guidelines
range, it is nearly inconceivable that the court abused its discretion in not varying
downward still further.’” See id. (quoting United States v. Moore, 581 F.3d 681, 684
(8th Cir. 2009)).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75
(1988), this court finds no nonfrivolous issues for review. The judgment is affirmed
and counsel’s motion to withdraw is granted.
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