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United States Court of Appeals, Eighth CircuitOct 6, 2009
333 Fed. Appx. 140 (8th Cir. 2009)

No. 08-1382.

Submitted: October 1, 2009.

Filed: October 6, 2009.

Appeal from the United States District Court for the Northern District of Iowa.

Janet Petersen, U.S. Attorney's Office, Sioux City, IA, for Appellee.

Zoshua Z. Zeutenhorst, Elverson Vasey, Des Moines, IA, for Appellant.

Before WOLLMAN, RILEY, and SMITH, Circuit Judges.



Luis Trujillo-Mendez appeals the sentence the district court imposed after he pleaded guilty to illegal re-entry, in violation of 8 U.S.C. § 1326(a), (b). His counsel has moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that the court abused its discretion in denying a downward departure under U.S.S.G. § 5K2.0. Because the district court acknowledged its authority to depart, and nothing in the record indicates that the refusal to do so was based upon an unconstitutional motive, the denial of Trujillo-Mendez's motion for a downward departure is unreviewable. See United States v. Morell, 429 F.3d 1161, 1164 (8th Cir. 2005). We also conclude that Trujillo-Mendez's sentence is not unreasonable. See United States v. Radtke, 415 F.3d 826, 845-46 (8th Cir. 2005).

The Honorable Mark W. Bennett, United States District Judge for the Northern District of Iowa.

We have independently reviewed the record under Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and have found no nonfrivolous issues. Accordingly, we grant counsel's motion to withdraw, and we affirm.

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