                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-1774
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Northern District of Iowa.
Erasmo Martinez-Herrera,                 *
                                         *    [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                          Submitted: September 15, 2003
                              Filed: September 17, 2003
                                   ___________

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

PER CURIAM.

       Erasmo Martinez-Herrera pleaded guilty to illegal reentry after deportation, in
violation of 8 U.S.C. § 1326(a), and the district court1 sentenced him to 41 months
imprisonment and 2 years supervised release. On appeal, counsel has moved to
withdraw and has filed a brief under Anders v. California, 386 U.S. 738 (1967),
arguing that the district court abused its discretion in sentencing Martinez-Herrera at
the top of the applicable Guidelines range.


      1
        The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.
       We reject counsel’s argument because we do not review the district court’s
exercise of discretion in setting a sentence at the top of a properly determined
Guidelines range. See United States v. Smotherman, 326 F.3d 988, 989 (8th Cir.
2003) (per curiam); United States v. Woodrum, 959 F.2d 100, 101 (8th Cir. 1992)
(per curiam).

      We have reviewed the record independently under Penson v. Ohio, 488 U.S.
75, 80 (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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