                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-2807
                                   ___________

United States of America,             *
                                      *
            Appellee,                 *
                                      * Appeal from the United States
      v.                              * District Court for the Northern
                                      * District of Iowa.
Aurelio Lavariega-Diego, also known *
as Aurelio Lavariega,                 *     [UNPUBLISHED]
                                      *
            Appellant.                *
                                 ___________

                             Submitted: December 5, 2003

                                  Filed: December 12, 2003
                                   ___________

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

PER CURIAM.


      Aurelio Lavariega-Diego challenges the sentence the District Court1 imposed
upon his guilty plea to illegally reentering the United States after deportation
following a conviction for aggravated domestic-abuse assault, in violation of 8 U.S.C.



      1
        The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.
§ 1326(a)–(b) (2003). On appeal, his counsel has filed a brief and moved to withdraw
under Anders v. California, 386 U.S. 738 (1967).

       On appeal, counsel argues that the sentence imposed was too harsh, because
Lavariego-Diego’s domestic-abuse history—which was the reason the District Court
gave for sentencing him at the top of the applicable Guidelines range—was fully
accounted for in his criminal history score and in the 16-level increase to his base
offense level. This argument fails. Lavariega-Diego’s sentence falls within 8 U.S.C.
§ 1326(b)’s 20-year maximum, it is within the appropriate Guidelines range, and we
will not review the sentence merely because it is at the top of the range. See United
States v. Smotherman, 326 F.3d 988, 989 (8th Cir.) (per curiam), cert. denied, 124
S. Ct. 293 (2003) (sentence at top of correct range does not create constitutional
infirmity allowing appellate review).

      Having found no nonfrivolous issues after reviewing the record independently
under Penson v. Ohio, 488 U.S. 75 (1988), we affirm. We also grant counsel’s
motion to withdraw.
                     ______________________________




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