1 The Honorable Donald E. O’Brien, United States District Judge for the Northern District of Iowa. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 02-4161

___________ United States of America, * * Appellee, * Appeal from the United States * District Court for the v. * Northern District of Iowa. * Martin Martinez-Tapia, also known as * [UNPUBLISHED] Victor Rene Madrid, also known as * Jorge Tapia, * * Appellant. *

___________ Submitted: June 26, 2003 Filed: July 1, 2003

___________ Before BOWMAN, BYE, and RILEY, Circuit Judges.

___________ PER CURIAM. Martin Martinez-Tapia pleaded guilty to illegal reentry of the United States following deportation for “the felony crime of attempted burglary, 3rd degree . . . for which he was sentenced to two years jail, suspended,” in violation of 8 U.S.C. § 1326(a) and (b)(1), (2). The district court 1 sentenced him to 41 months imprisonment and 2 years supervised release. Counsel has moved to withdraw and-2- filed a brief under Anders v. California , 386 U.S. 738 (1967), arguing that the district court plainly erred in finding that Martinez-Tapia’s prior conviction for attempted third-degree burglary was a “felony” conviction warranting a 16-level increase under U.S.S.G. § 2L1.2(b)(1)(A). Counsel points out that under Iowa law, Martinez-Tapia’s sentence, assuming a full award of good-time credit, would have been discharged in less than one year. We review this argument, raised for the first time on appeal, for plain error. See United States v. Montanye , 996 F.2d 190, 192 (8th Cir. 1993) (en banc). Section 2L1.2 provides for a 16-level increase if the defendant was deported after “a conviction for a felony that is (ii) a crime of violence.” See U.S.S.G. § 2L1.2(b)(1)(A)(ii). Commentary defines “felony” as “any federal, state, or local offense punishable by imprisonment for a term exceeding one year.” SeeU.S.S.G. § 2L1.2, comment. (n.1(B)(iv)). Under Iowa law, “[a]ttempted burglary in the third degree is an aggravated misdemeanor.” See Iowa Code Ann. § 713.6B (West Supp. 2003). The Iowa penalties section provides, “When a person is convicted of an aggravated misdemeanor, and a specific penalty is not provided for, the maximum penalty shall be imprisonment not to exceed two years . . . . [When] the court imposes a sentence of confinement for a period of more than one year the term shall be an indeterminate term.” See Iowa Code Ann. § 903.1(2) (West Supp. 2003). The district court did not plainly err in concluding that the offense was a “felony” for purposes of section 2L1.2’s 16-level increase. Federal law controls the issue, see United States v. Jenkins , 989 F.2d 979, 979 (8th Cir. 1993) (“How a state views an offense does not determine how the United States Sentencing Guidelines view that offense.”); cf. United States v. Johnson , 12 F.3d 760, 766 (8th Cir. 1993) (whether prior sentence counts for criminal history purposes is question of federal law, not state law), cert. denied , 512 U.S. 1211 (1994), and the Guidelines definition of “felony” requires only that the offense be punishable by imprisonment for more than one year, which the Iowa statute clearly permits.-3- Having reviewed the record independently under Penson v. Ohio , 488 U.S. 75 (1988), we find no nonfrivolous issues. Accordingly, we affirm, and we grant counsel’s motion to withdraw. A true copy.

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