United States v. Merlin Alvarez-Diaz
Opinion
Merlin Osmar Alvarez-Diaz, a Mexican citizen, appeals the sentence of 60 months imprisonment and 3 years supervised release imposed on him by the district court 1 after he pleaded guilty to illegal reentry following deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). On ap *466 peal, counsel moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and filed a brief arguing that U.S.S.G. § 2L1.2(b)(l)(A) (16-level increase if defendant was deported after aggravated-felony conviction) is inflexibly harsh given the lack of seriousness of Mr. Alvarez-Diaz’s prior convictions, that counsel should have requested a downward departure, and that the court should have departed sua sponte.
We reject these arguments seriatim. First, there is no jurisdictional basis for review of a sentence on the ground that it is too harsh. See 18 U.S.C. § 3742(a) (grounds for appeal of sentence by defendant). Second, Mr. Alvarez-Diaz’s suggestion that counsel was ineffective should be raised in a 28 U.S.C. § 2255 proceeding, if at all. See United States v. Cain, 134 F.3d 1345, 1352 (8th Cir. 1998). Third, the district court did not plainly err by not departing on its own accord. See United States v. Montgomery, 262 F.3d 233, 249 n. 6 (4th Cir. 2001). In any event, because Mr. Alvarez-Diaz had additional prior felony convictions, he could not be considered for the kind of departure he now seeks. See U.S.S.G. § 2L1.2, comment. (n.5) (downward departure may be warranted based on seriousness of aggravated felony if, inter aha, defendant has previously been convicted of only one felony offense).
Having reviewed the record independently pursuant to Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we have found no nonfrivolous issues for appeal.
Accordingly, we grant counsel’s motion to withdraw and we affirm.
. The Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District of Missouri.
Reference
- Full Case Name
- UNITED STATES of America, Appellee, v. Merlin Osmar ALVAREZ-DIAZ, Appellant
- Status
- Unpublished