United States v. S. Davila-Marin, (8th Cir. 2003)

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United States Court of Appeals FOR THE EIGHTH CIRCUIT

No. 02-4079

United States of America, Appellee, v. Salvadore Davila-Marin, also known as Ricardo Diaz, also known as Ricardo Diaz-Martinez, also known as Salvador Julian Davila-Marin, also known as Salvador Davila, also known as Julian Salvador, also known as Julian Davila- Salvador, also known as Salvador Davila Marin, also known as Julian Davila Salvador, Appellant.

Submitted: July 2, 2003 Filed: July 18, 2003

Before WOLLMAN, BYE, and MELLOY, Circuit Judges.

PER CURIAM.

In this direct criminal appeal, Salvadore Davila-Marin challenges the sentence the district court1 imposed after he pleaded guilty to illegally re-entering the United States after deportation, following a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). Finding that the Guidelines calculations overrepresented his criminal history, the district court granted Davila-MarinÂ’s motion for a downward departure, reducing his criminal history from Category IV to Category III. The court overruled Davila-MarinÂ’s motion to reduce his offense level, however, and sentenced him to 30 months of imprisonment and 3 years of supervised release. On appeal, Davila-MarinÂ’s counsel has moved to withdraw under Anders v. California, 386 U.S. 738 (1967), arguing that the district court erred in calculating his criminal history, by departing only one criminal history category, and by not departing to a lower offense level.

We conclude that the district court§§ 4A1.1(b) (2 criminal history points are assigned for each prior sentence of at least 60 days), 4A1.2, comment. (n.2) (criminal history points are based on sentence imposed, not length of time actually served);

Appeal from the United States

District Court for the

District of Nebraska.

[UNPUBLISHED]

United States v. Lopez-Arce, 267 F.3d 775, 782-83 (8th Cir. 2001) (standard of review).

Following careful review of the record, we find no other nonfrivolous issues. See Penson v. Ohio, 488 U.S. 75, 80 (1988). Accordingly, the judgment is affirmed. We also grant counselÂ’s motion to withdraw.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

[1] The Honorable Joseph F. Battaillon, United States District Judge for the District of Nebraska.

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