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The Honorable Linda R. Reade, Chief Judge, United States District Court for

the Northern District of Iowa. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-2525

___________

United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the

v. * Northern District of Iowa.

*

Marcos Antonio Ramos Jimenez, * [UNPUBLISHED]

also known as Gilberto Martinez, *

*

Appellant. *

___________

Submitted: November 18, 2010

Filed: December 7, 2010

___________

Before LOKEN, MURPHY, and BENTON, Circuit Judges.

___________

PER CURIAM.

In this direct criminal appeal, Marcos Antonio Ramos Jimenez (Jimenez)

challenges the 63-month prison sentence imposed by the district court1

 after he pled

guilty to illegal reentry into the United States after being deported following

aggravated felony convictions, in violation of 8 U.S.C. § 1326(a), (b)(2). On appeal,

counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S.

738 (1967), arguing that (1) the district court abused its discretion by departing
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upwards 4 levels on Jimenez’s offense level based on its determination that Jimenez’s

criminal history score underrepresented the seriousness of his criminal history and the

likelihood that he would recidivate, see U.S.S.G. § 4A1.3(a); (2) the extent of the

departure is unreasonable; and (3) the overall sentence is unreasonable. Jimenez has

filed a pro se brief raising additional issues.

We review a district court’s decision to depart upwards for abuse of discretion,

and the extent of that departure for reasonableness. See United States v. RuvalcavaPerez, 561 F.3d 883, 886 (8th Cir. 2009). We find no abuse of discretion, as the court

explained that it based its departure on the nature of Jimenez’s criminal history, the

likelihood that he would recidivate, and the ineffectiveness of prior lenient treatment.

See United States v. Cook, 615 F.3d 891, 893-94 (8th Cir. 2010). Further, we find the

extent of the departure reasonable. See United States v. Maurstad, 454 F.3d 787, 789-

90 (8th Cir. 2006). 

The overall sentence is reviewed under a deferential abuse-of-discretion

standard, first ensuring that the district court committed no significant procedural

error, and then considering the substantive reasonableness of the sentence. See United

States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). We find no abuse of

discretion. The court recognized the advisory nature of the Guidelines, properly

calculated the Guidelines range after departing upwards, and acknowledged its

consideration of all the sentencing factors. See id. at 461 (procedural error includes

improper application of Guidelines, treating Guidelines as mandatory, failing to

consider 18 U.S.C. § 3553(a) factors, selecting sentence based on clearly erroneous

facts, or failing to adequately explain sentence). The sentence imposed was within the

Guidelines range calculated after applying the departure, and there is no indication

that Jimenez would be able to rebut the resulting presumption of reasonableness. See

United States v. Linderman, 587 F.3d 896, 901 (8th Cir. 2009); United States v.

Cadenas, 445 F.3d 1091, 1094 (8th Cir. 2006).
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Turning to Jimenez’s pro se arguments, there is no merit to his contention that

international law was somehow violated, and his ineffective-assistance claim is not

properly raised in this direct appeal. See United States v. Ramirez-Hernandez, 449

F.3d 824, 827 (8th Cir. 2006). 

We reviewed the record independently under Penson v. Ohio, 488 U.S. 75

(1988), and found no nonfrivolous issues for appeal. We affirm the judgment of the

district court, and deny Jimenez’s pending motion for appointment of counsel.

Counsel’s motion to withdraw is granted, subject to counsel informing Jimenez about

procedures for seeking rehearing or filing a petition for certiorari.

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