United States v. Cesar Payan-Carrillo ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-3350
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Cesar Gustavo Payan-Carrillo, also known as Erik Molina-Grado
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: July 16, 2018
Filed: July 19, 2018
[Unpublished]
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Before LOKEN, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
In this direct criminal appeal, Cesar Payan-Carrillo challenges the sentence the
district court1 imposed after he pleaded guilty to illegal reentry. His counsel has
1
The Honorable Beth Phillips, United States District Judge for the Western
District of Missouri.
moved to withdraw and submitted a brief under Anders v. California, 386 U.S. 738(1967), discussing whether the sentence was substantively unreasonable. Payan-
Carillo has also filed a pro se supplemental brief, in which he argues that the sentence
was substantively unreasonable, as the upward variance was not justified; and that
counsel was ineffective for failing to object to the inclusion of a pending assault
charge in the presentence report.
As to the reasonableness of the sentence, we conclude that the district court did
not abuse its discretion in varying upward, as it properly considered the 18 U.S.C.
§ 3553(a) factors, and there was no indication that it overlooked a relevant factor, or
committed a clear error of judgment in weighing relevant factors. See United States
v. Feemster, 572 F.3d 455, 461, 464 (8th Cir. 2009) (en banc) (standard of review);
see also United States v. Mangum, 625 F.3d 466, 469-70 (8th Cir. 2010).
We conclude Payan-Carillo’s ineffective-assistance claim would be better
litigated in a 28 U.S.C. § 2255 proceeding. See United States v. Ramirez-Hernandez,
449 F.3d 824, 826-27 (8th Cir. 2006). Furthermore, we have independently reviewed
the record under Penson v. Ohio, 488 U.S. 75 (1988), and have found no
non-frivolous issues for appeal. Accordingly, we grant counsel’s motion to withdraw,
and affirm.
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