                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-4161
                                    ___________

United States of America,            *
                                     *
             Appellee,               * Appeal from the United States
                                     * District Court for the
      v.                             * Northern District of Iowa.
                                     *
Martin Martinez-Tapia, also known as * [UNPUBLISHED]
Victor Rene Madrid, also known as    *
Jorge Tapia,                         *
                                     *
             Appellant.              *
                                ___________

                          Submitted: June 26, 2003
                              Filed: July 1, 2003
                                   ___________

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

PER CURIAM.

      Martin Martinez-Tapia pleaded guilty to illegal reentry of the United States
following deportation for “the felony crime of attempted burglary, 3rd degree . . . for
which he was sentenced to two years jail, suspended,” in violation of 8 U.S.C.
§ 1326(a) and (b)(1), (2). The district court1 sentenced him to 41 months
imprisonment and 2 years supervised release. Counsel has moved to withdraw and


      1
      The Honorable Donald E. O’Brien, United States District Judge for the
Northern District of Iowa.
filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing that the district
court plainly erred in finding that Martinez-Tapia’s prior conviction for attempted
third-degree burglary was a “felony” conviction warranting a 16-level increase under
U.S.S.G. § 2L1.2(b)(1)(A). Counsel points out that under Iowa law, Martinez-Tapia’s
sentence, assuming a full award of good-time credit, would have been discharged in
less than one year.

       We review this argument, raised for the first time on appeal, for plain error.
See United States v. Montanye, 996 F.2d 190, 192 (8th Cir. 1993) (en banc). Section
2L1.2 provides for a 16-level increase if the defendant was deported after “a
conviction for a felony that is (ii) a crime of violence.” See U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). Commentary defines “felony” as “any federal, state, or local
offense punishable by imprisonment for a term exceeding one year.” See U.S.S.G.
§ 2L1.2, comment. (n.1(B)(iv)). Under Iowa law, “[a]ttempted burglary in the third
degree is an aggravated misdemeanor.” See Iowa Code Ann. § 713.6B (West Supp.
2003). The Iowa penalties section provides, “When a person is convicted of an
aggravated misdemeanor, and a specific penalty is not provided for, the maximum
penalty shall be imprisonment not to exceed two years . . . . [When] the court
imposes a sentence of confinement for a period of more than one year the term shall
be an indeterminate term.” See Iowa Code Ann. § 903.1(2) (West Supp. 2003).

       The district court did not plainly err in concluding that the offense was a
“felony” for purposes of section 2L1.2’s 16-level increase. Federal law controls the
issue, see United States v. Jenkins, 989 F.2d 979, 979 (8th Cir. 1993) (“How a state
views an offense does not determine how the United States Sentencing Guidelines
view that offense.”); cf. United States v. Johnson, 12 F.3d 760, 766 (8th Cir. 1993)
(whether prior sentence counts for criminal history purposes is question of federal
law, not state law), cert. denied, 512 U.S. 1211 (1994), and the Guidelines definition
of “felony” requires only that the offense be punishable by imprisonment for more
than one year, which the Iowa statute clearly permits.

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

      A true copy.

            Attest:

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




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