United States of America v. Ruben Montelongo Garza

United States Court of Appeals
For the Eighth Circuit
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No. 13-2459
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Ruben Montelongo Garza
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: January 7, 2014
Filed: January 10, 2014
[Unpublished]
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Before LOKEN, BOWMAN, and GRUENDER, Circuit Judges.
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PER CURIAM.
Ruben Montelongo Garza pleaded guilty to illegally reentering the United
States having been previously deported after an aggravated felony conviction, in

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violation of 8 U.S.C. § 1326(a), (b)(2). The district court sentenced him at the1
bottom of the Sentencing Guidelines range to 57 months in prison. On appeal, his
counsel has moved to withdraw and has filed a brief under Anders v. California, 386
U.S. 738 (1967), arguing that the court erred by using Garza’s 1992 attempted murder
conviction to support a 16-level enhancement to his offense level, and that the
sentence was excessive. Garza has filed a motion for appointment of counsel on
appeal.
After careful review, we hold that the district court properly included Garza’s
1992 conviction when calculating his offense level and criminal history category.
Although Garza was arrested in 2011, he illegally reentered the United States no later
than April 1998. See United States v. Delgado-Hernandez, 646 F.3d 562, 567 (8th
Cir. 2011) (per curiam) (illegal reentry is ongoing offense that begins on date of
reentry). The sentence for his 1992 conviction was imposed within 15 years of the
commencement of the instant offense, and thus was properly used in determining his
offense level and criminal history category. See U.S.S.G. §§ 2L1.2(b)(1)(A),
4A1.1(a), 4A1.2(e)(1).
We further hold that the sentence was not substantively unreasonable, because
the district court properly weighed the relevant factors and sentenced Garza at the
bottom of the correctly calculated Guidelines range. See Delgado-Hernandez, 646
F.3d at 568 (appellate review of substantive reasonableness of sentence is narrow and
deferential; appellate court may apply presumption of reasonableness to within-
Guidelines-range sentence).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no nonfrivolous issues for appeal. Accordingly, we affirm the
The Honorable James E. Gritzner, Chief Judge, United States District Court1
for the Southern District of Iowa.
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conviction and sentence, grant counsel’s motion to withdraw, and deny Garza’s
motion for appointment of counsel.
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