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The Honorable Scott O. Wright, United States District Judge for the Western

District of Missouri.

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* [UNPUBLISHED]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. 738
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(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. ViezcasSoto, 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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