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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Martin Martinez-Tapia, also known as * [UNPUBLISHED]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. *

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 Submitted: June 26, 2003

 Filed: July 1, 2003

___________

Before BOWMAN, BYE, and RILEY, Circuit Judges.

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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 court1

 sentenced him to 41 months

imprisonment and 2 years supervised release. Counsel has moved to withdraw and
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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.” See U.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.
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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.