                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-3405
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the Eastern
                                         * District of Arkansas
Andre Guerra,                            *
                                         *    [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                          Submitted: March 20, 2002

                               Filed: April 3, 2002
                                    ___________

Before McMILLIAN, BOWMAN, and MURPHY, Circuit Judges.
                         ___________

PER CURIAM.

      Andre Guerra appeals his conviction, and the resulting sentence imposed on
him by the District Court for the Eastern District of Arkansas,1 after he pleaded guilty
to bank fraud in violation of 18 U.S.C. §§ 1344 and 2. The district court sentenced
Guerra to serve 51 months imprisonment and 5 years supervised release, and to pay
$162,129.24 in restitution. His counsel has moved to withdraw, filing a brief
pursuant to Anders v. California, 386 U.S. 738 (1967). For reversal, counsel argues

      1
       The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
that the district court erred in (1) assigning criminal history points to a sentence
imposed for a 1985 conviction, because the conviction was more than 15 years old
at the time of the instant sentencing; (2) assigning criminal history points for a 2001
conviction, because the underlying conduct occurred after the conduct underlying the
instant conviction and was part of a common plan or scheme with the instant offense;
and (3) denying Guerra’s objection to the government’s refusal to move for a
substantial assistance departure. In a pro se supplemental brief, Guerra argues that
his plea was unknowing and involuntary because he was unaware of the effect his
criminal history would have on his sentence. For the reasons discussed below, we
affirm the judgment of the district court.

       We conclude that the district court properly assigned criminal history points
to the sentences imposed for Guerra’s 1985 and 2001 convictions. He was
incarcerated on the 1985 conviction through February 1991, and he commenced the
instant offense in May 1999. See U.S.S.G. § 4A1.2(e)(1) (Nov. 2000). The 2001
conviction involved credit card fraud and occurred in Georgia, whereas the instant
offense occurred primarily in Arkansas and involved fraudulent checks; further, the
conduct underlying the 2001 conviction was not used to determine the amount of loss
for the instant offense. See U.S.S.G. §§ 4A1.1(a); 4A1.2, comment. (n.1) (Nov.
2000) (defining “prior sentence”). The district court also properly denied Guerra’s
objection to the government’s refusal to move for a substantial assistance departure.
The plea agreement reserved to the government discretion to determine whether
Guerra had provided substantial assistance, and Guerra failed to make a substantial
threshold showing of prosecutorial discrimination or irrational conduct. See United
States v. Amezcua, 276 F.3d 445, 447 (8th Cir. 2002). Finally, Guerra’s claim that
his plea was unknowing and involuntary first must be raised in the district court. See
United States v. Murphy, 899 F.2d 714, 716 (8th Cir. 1990).

      Having found no nonfrivolous issues following our independent review of the
record in accordance with Penson v. Ohio, 488 U.S. 75, 80 (1988), we grant counsel’s

                                          -2-
motion to withdraw, deny Guerra’s motion for appointment of new counsel, and
affirm.

     Accordingly, we affirm.

     A true copy.

           Attest:

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




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