United States v. Claudio Arias-Alvarez , 381 F. App'x 624 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2141
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Claudio Arias-Alvarez, *
* [UNPUBLISHED]
Appellant. *
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Submitted: June 4, 2010
Filed: June 21, 2010
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Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Claudio Arias-Alvarez pleaded guilty to being an alien who illegally re-entered
the United States after having been removed in 2002 subsequent to an aggravated
felony conviction for first-degree statutory rape, all in violation of 8 U.S.C. § 1326(a),
(b)(2). The district court1 sentenced him within the applicable advisory Guidelines
range to 37 months in prison and 2 years of supervised release. On appeal, his counsel
has moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 7381
The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.
(1967), questioning whether Arias-Alvarez’s prior statutory rape conviction
constituted a crime of violence under the Guidelines.
In reviewing the imposition of a sentence, we first ensure that the district court
committed no significant procedural error, which includes improperly calculating the
Guidelines range, failing to consider the 18 U.S.C. § 3553(a) sentencing factors, or
failing to adequately explain the chosen sentence; we then consider the substantive
reasonableness of the sentence under a deferential abuse-of-discretion standard, taking
into account the totality of the circumstances. See United States v. Feemster, 572 F.3d
455, 461 (8th Cir. 2009) (en banc).
As to the argument raised by counsel in the Anders brief, we conclude that the
district court did not err in classifying Arias-Alvarez’s prior statutory rape conviction
as a crime of violence. See U.S.S.G. § 2L1.2(b)(1)(A)(ii) (increase base offense level
by 16 if defendant previously was deported after conviction for felony that is crime
of violence), § 2L1.2, comment. (n.1(B)(iii)) (listing “statutory rape” as crime of
violence under § 2L1.2(b)(1)(A)); United States v. Garcia-Juarez, 421 F.3d 655, 658
n.1 (8th Cir. 2005) (noting that as to § 2L1.2, enumerated offenses are always
classified as crimes of violence); see also Mo. Rev. Stat. § 566.032 (defining offense
of first-degree statutory rape, which is felony for which authorized term of
imprisonment is life, or term of years not less than 5 years); United States v. Viezcas-
Soto, 562 F.3d 903, 906 (8th Cir. 2009) (this court reviews de novo district court’s
application of Guidelines). Further, upon careful review, we conclude that the district
court did not commit any procedural sentencing error warranting relief. See United
States v. Phelps, 536 F.3d 862, 865 (8th Cir. 2008) (if defendant does not timely
object to procedural sentencing error, error is forfeited and may only be reviewed for
plain error), cert. denied, 129 S. Ct. 1390 (2009); see also United States v. Jeffries,
569 F.3d 873, 875-76 (8th Cir. 2009) (describing plain-error review standard).
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We also conclude that Arias-Alvarez’s sentence is not substantively
unreasonable. See United States v. Saddler, 538 F.3d 879, 890 (8th Cir.) (describing
circumstances where district court abuses its discretion and imposes unreasonable
sentence; within-Guidelines-range sentences are presumed reasonable on appeal), cert.
denied, 129 S. Ct. 770 (2008).
Finally, having reviewed the record independently under Penson v. Ohio, 488
U.S. 75, 80 (1988), we have found no nonfrivolous issue for appeal. Accordingly, we
affirm the district court’s judgment, and we grant counsel’s motion to withdraw.
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