                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 03-1066
                                 ___________

United States of America,            *
                                     *
            Appellee,                *
                                     * Appeal from the United States
      v.                             * District Court for the
                                     * District of Minnesota.
Marcos Alejandro Martinez-Rodriguez, *
also known as Alejandro Rodriguez,   *      [UNPUBLISHED]
also known as Jose Ortego,           *
                                     *
            Appellant.               *
                                ___________

                        Submitted: July 16, 2003
                            Filed: July 21, 2003
                                 ___________

Before LOKEN, Chief Judge, MURPHY, and RILEY, Circuit Judges.
                             ___________

PER CURIAM.

      Marcos Martinez-Rodriguez pleaded guilty to illegal reentry following
deportation after conviction for an aggravated felony, in violation of 8 U.S.C.
§ 1326(a), (b)(2). At sentencing, the district court1 denied Martinez-Rodriguez’s
motion for downward departure and sentenced him to 71 months imprisonment and
3 years supervised release. On appeal, counsel has moved to withdraw and filed a


      1
       The HONORABLE JAMES M. ROSENBAUM, Chief Judge, United States
District Court for the District of Minnesota.
brief under Anders v. California, 386 U.S. 738 (1967), arguing that the district court
erroneously sentenced Martinez-Rodriguez at the top of the Guidelines range, and
that the court should have granted a downward departure. We reject these arguments.

       We do not review a sentence that has been imposed at the top of a properly
determined Guidelines range. See United States v. Woodrum, 959 F.2d 100, 101 (8th
Cir. 1992) (per curiam). Nor do we review a sentencing court’s denial of a downward
departure, where, as here, there is no indication the court believed it lacked the
authority to depart. See United States v. Lopez-Arce, 267 F.3d 775, 783-84 (8th Cir.
2001).

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

      A true copy.

             Attest:

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




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