                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-1296
                                    ___________

United States of America,             *
                                      *
           Appellee,                  *
                                      *
      v.                              * Appeal from the United States
                                      * District Court for the
Agapito Napoles-Garcia, also known as * District of Nebraska.
Agapito Napoles-Jiminez,              *
                                      *     [UNPUBLISHED]
           Appellant.                 *
                                 ___________

                            Submitted: June 7, 2001
                                Filed: June 12, 2001
                                    ___________

Before HANSEN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

PER CURIAM.

       Agapito Napoles-Garcia pleaded guilty to illegally re-entering the United States,
in violation of 8 U.S.C. § 1326(a). His sentence was enhanced under 8 U.S.C.
§ 1326(b) because he had previously been deported after conviction for an aggravated
felony. The district court1 sentenced him to 57 months of imprisonment and 2 years of
supervised release. On appeal, counsel has filed a brief and moved to withdraw under



      1
        The Honorable Thomas M. Shanahan, United States District Judge for the
District of Nebraska.
Anders v. California, 386 U.S. 738 (1967), and Napoles-Garcia has not filed a pro se
supplemental brief.

      Counsel first argues that Napoles-Garcia’s prior deportation following his
conviction for an aggravated felony was an element of the instant offense under
Apprendi v. New Jersey, 530 U.S. 466 (2000), and that the district court’s failure to
so advise him rendered his guilty plea invalid. This argument lacks merit. See
Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998); United States v.
Raya-Ramirez, 244 F.3d 976, 977 (8th Cir. 2001). Second, counsel argues that the
sentence imposed is too harsh. This does not provide a valid basis for appeal. See 18
U.S.C. § 3742(a).

       Having located no nonfrivolous issues for appeal after reviewing the record
independently pursuant to Penson v. Ohio, 488 U.S. 75 (1988), we affirm the judgment
of the district court and grant counsel’s motion to withdraw.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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