United States v. Sandro Diaz-Torres , 320 F. App'x 482 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3621
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Sandro Diaz-Torres, *
* [UNPUBLISHED]
Appellant. *
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Submitted: April 9, 2009
Filed: April 10, 2009
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Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.
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PER CURIAM.
Sandro Diaz-Torres pleaded guilty to illegally reentering the United States after
having been removed subsequent to a conviction for an aggravated felony. See 8
U.S.C. § 1326(a), (b)(2). The district court1 sentenced Diaz-Torres to 96 months in
prison and 3 years of supervised release. On appeal, his counsel has moved to
withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing
the sentence was unreasonable. Diaz-Torres has filed a pro se supplemental brief in
which he argues that the district court violated the Sixth Amendment by imposing a
1
The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A) based on judge-found facts,
and that the court treated the resulting incorrect Guidelines range as mandatory.
We conclude that the district court did not abuse its discretion in sentencing
Diaz-Torres at the top of the Guidelines range. See United States v. Booker, 543 U.S.
220, 261-62 (2005) (appellate courts must review sentences for unreasonableness);
United States v. Haack, 403 F.3d 997, 1003 (8th Cir. 2005) (standard of review). In
determining the sentence, the court considered only relevant factors and did not
clearly misjudge their weight. See Rita v. United States, 127 S. Ct. 2456, 2462 (2007)
(approving appellate presumption of reasonableness for sentences within properly
calculated Guidelines range); United States v. Cadenas, 445 F.3d 1091, 1094 (8th Cir.
2006) (although sentence within applicable Guidelines range is presumed reasonable,
that presumption may be rebutted by evidence that district court failed to consider
relevant factor, gave significant weight to improper or irrelevant factor, or committed
clear error of judgment in considering appropriate factors).
We also reject Diaz-Torres’s pro se arguments. His Sixth Amendment
argument is foreclosed by United States v. Torres-Alvarado, 416 F.3d 808, 810-11
(8th Cir. 2005) (district court did not violate Sixth Amendment in determining that
defendant’s prior conviction was aggravated felony or drug-trafficking offense for
purposes of applying § 2L1.2(b)(1) enhancement); and the sentencing transcript as a
whole demonstrates that the district court treated the Guidelines as advisory and that
it considered the 18 U.S.C. § 3553(a) factors, see Cadenas, 445 F.3d at 1094 (district
court need not mechanically recite each of § 3553(a) factors as long as it is “clear from
the record that it actually considered them”).
Having reviewed the record under Penson v. Ohio, 488 U.S. 75, 80 (1988), we
find no nonfrivolous issues. Accordingly, we affirm, and we grant counsel’s motion
to withdraw on the condition that counsel inform appellant about the procedures for
filing petitions for rehearing and for certiorari.
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