                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   _____________

                                   No. 99-2469MN
                                   _____________

United States of America,             *
                                      *
             Appellee,                * On Appeal from the United
                                      * States District Court
       v.                             * for the District of
                                      * Minnesota.
Efrain Guzman-Villacana, also known *
as Jose Franco Mendoza, also known    * [Not To Be Published]
as Piedad Ramirez-Reynoso, Jr.,       *
                                      *
             Appellant.               *
                                 ___________

                            Submitted: July 31, 2000
                                Filed: August 7, 2000
                                    ___________

Before RICHARD S. ARNOLD, BEAM, and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                          ___________

PER CURIAM.

       Efrain Guzman-Villacana pleaded guilty of illegally re-entering the United States
after deportation, having previously been convicted of an aggravated felony, in
violation of 8 U.S.C. § 1326(b)(2). The District Court1 sentenced him to five years and


      1
      The Hon. Richard H. Kyle, United States District Judge for the District of
Minnesota.
three months (sixty-three months) imprisonment, and two years supervised release. On
appeal, his counsel has filed a brief and moved to withdraw pursuant to Anders v.
California, 386 U.S. 738 (1967), and with our permission, Guzman-Villacana has filed
a pro se supplemental brief.

       Counsel argues that U.S. Sentencing Guidelines Manual § 2L1.2 (1998) conflicts
with 8 U.S.C. § 1326. The Guidelines punishment ratio is much higher than the
statutory punishment ratio for offenders with aggravated-felony convictions relative to
offenders without aggravated-felony convictions, the argument goes, and the Guideline
is therefore invalid. We conclude that this challenge is foreclosed by the plea
agreement, in which Guzman-Villacana agreed to the application of section 2L1.2 and
the resulting punishment. See United States v. Nguyen, 46 F.3d 781, 783 (8th Cir.
1995). Even had the issue been preserved, counsel’s argument lacks merit.

       In his pro se supplemental brief, Guzman-Villacana argues that his counsel
should have requested, and the District Court should have granted, a downward
departure based on certain disadvantages he suffers due to his alienage and deportable
status. We conclude that the Court did not plainly err in failing to grant an unrequested
downward departure, see United States v. Montanye, 996 F.2d 190, 192 (8th Cir.
1993) (en banc) (standard of review), and that counsel’s failure to request such a
departure should be presented in 28 U.S.C. § 2255 proceedings, see United States v.
Martin, 59 F.3d 767, 771 (8th Cir. 1995).

      We have reviewed the record independently pursuant to Penson v. Ohio, 488
U.S. 75 (1988), and we have found no nonfrivolous issues. Accordingly, we affirm,
and we grant counsel’s motion to withdraw.




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A true copy.

      Attest:

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




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