United States v. Santoscoy-Martinez , 85 F. App'x 544 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2531
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United States of America, *
*
Appellee, *
* Appeal from the United States
* District Court for the Western
* District of Arkansas.
Oscar Santoscoy-Martinez, *
* [UNPUBLISHED]
Appellant. *
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Submitted: January 15, 2004
Filed: January 21, 2004
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Before MORRIS SHEPPARD ARNOLD, BYE, and RILEY, Circuit Judges.
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PER CURIAM.
Oscar Santoscoy-Martinez pleaded guilty to illegally reentering the United
States after deportation following a conviction for an aggravated felony, in violation
of 8 U.S.C. § 1326(a) and (b)(2). The district court1 sentenced him to 46 months
imprisonment and 3 years supervised release. On appeal, Mr. Santoscoy-Martinez’s
counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S.
738 (1967), arguing that (1) the district court erred in enhancing Mr. Santoscoy-
1
The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas.
Martinez’s sentence based on a Texas burglary conviction, because he received
ineffective assistance of counsel in that case; and (2) the court should have granted
a downward departure based on Mr. Santoscoy-Martinez’s overrepresented criminal
history.
After careful review, we reject these arguments. Mr. Santoscoy-Martinez
cannot, in these proceedings, collaterally attack his prior state sentence based on
ineffective assistance of counsel, see United States v. Jones, 28 F.3d 69, 70 (8th Cir.
1994) (per curiam); and the departure argument is unreviewable, because there is no
indication the district court believed it lacked authority to depart, see United States
v. Moore, 245 F.3d 1023, 1026 (8th Cir. 2001).
Finally, we have reviewed the record independently pursuant to Penson v.
Ohio, 488 U.S. 75 (1988), and we find no nonfrivolous issues. Accordingly, we
affirm. We also grant counsel’s motion to withdraw.
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