1 The Honorable Richard E. Dorr, United St ates District Judge for the Western District of Missouri. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 07-3621

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Sandro Diaz-Torres, * * [UNPUBLISHED] Appellant. *

___________ Submitted: April 9, 2009 Filed: April 10, 2009

___________ Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.

___________ PER CURIAM. Sandro Diaz-Torres pleaded guilty to illegally reentering the United States after having been removed subsequent to a convi ction for an aggravated felony. See8 U.S.C. § 1326(a), (b)(2). The district court 1 sentenced Diaz-Torres to 96 months in prison and 3 years of supervised release. On appeal, his counsel has moved to withdraw and filed a brief under Anders v. California , 386 U.S. 738 (1967), arguing the sentence was unreasonable. Diaz-Torres has filed a pro se supplemental brief in which he argues that the district court violated the Sixth Amendment by imposing a-2- 16-level enhancement under U.S.S.G. § 2L 1.2(b)(1)(A) based on judge-found facts, and that the court treated the resulting in correct Guidelines range as mandatory.

We conclude that the district court di d not abuse its discretion in sentencing Diaz-Torres at the top of th e Guidelines range. See United States v. Booker , 543 U.S. 220, 261-62 (2005) (appellate courts must review sentences for unreasonableness); United States v. Haack , 403 F.3d 997, 1003 (8th Cir. 2005) (standard of review). In determining the sentence, the court cons idered only relevant factors and did not clearly misjudge their weight. See Rita v. United States , 127 S. Ct. 2456, 2462 (2007) (approving appellate presumption of reasona bleness for sentences within properly calculated Guidelines range); United States v. Cadenas , 445 F.3d 1091, 1094 (8th Cir. 2006) (although sentence within applicable Gu idelines range is presumed reasonable, that presumption may be rebutted by evidence that district court failed to consider relevant factor, gave significant weight to improper or irrelevant factor, or committed clear error of judgment in considering appropriate factors).
We also reject Diaz-Torres’s pro searguments. His Sixth Amendment argument is foreclosed by United States v. Torres-Alvarado , 416 F.3d 808, 810-11 (8th Cir. 2005) (district c ourt did not violate Sixth Amendment in determining that defendant’s prior conviction was aggravatedfelony or drug-trafficking offense for purposes of applying § 2L1.2(b)(1) enhancem ent); and the sentencing transcript as a whole demonstrates that the district court treated the Guidelines as advisory and that it considered the 18 U.S.C . § 3553(a) factors, see Cadenas , 445 F.3d at 1094 (district court need not mechanically recite each of § 3553(a) factors as long as it is “clear from the record that it actua lly considered them”).
Having reviewed the reco rd under Penson v. Ohio , 488 U.S. 75, 80 (1988), we find no nonfrivolous issues. Accordingly, we affirm, and we grant counsel’s motion to withdraw on the condition that counsel in form appellant about the procedures for filing petitions for rehearing and for certiorari.

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