United States v. Cruz Roberto Alaniz , 79 F. App'x 950 ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1476
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District
* of Nebraska.
Cruz Roberto Alaniz, *
* [UNPUBLISHED]
Appellant. *
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Submitted: October 28, 2003
Filed: November 4, 2003
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Before WOLLMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Cruz Roberto Alaniz challenges the sentence the district court1 imposed after
he pleaded guilty to conspiring to distribute and possess with intent to distribute
500 grams or more of a mixture or substance containing methamphetamine, in
violation of 21 U.S.C. § 846. The district court sentenced him to 121 months
imprisonment and 5 years supervised release. On appeal, Mr. Alaniz’s counsel has
moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967),
1
The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska.
arguing that the district court erred in assessing criminal history points for a sentence
arising from an “expunged” Texas conviction.
After careful review, we find the district court’s decision to assess criminal
history points for the Texas sentence was consistent with the Guidelines. Under both
the terms of the Texas discharge order and Texas law, the discharge was not an
expungement, and the discharge order indicates that the Texas conviction was set
aside for reasons unrelated to Alaniz’s factual or legal innocence. See U.S.S.G.
§ 4A1.2, comment. (n.10); Cuellar v. Texas, 70 S.W.3d 815, 818 (Tex. Crim. App.
2002).
Following our independent review of the record, see Penson v. Ohio, 488 U.S.
75, 80 (1988), we find no other nonfrivolous issues. Accordingly, the judgment is
affirmed. We also grant counsel’s motion to withdraw.
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