United States v. Epifanio Reyes-Nunez

Eighth Circuit

United States v. Epifanio Reyes-Nunez

300 F. App'x 436

CourtCourt of Appeals for the Eighth Circuit

DecidedDecember 1, 2008

Docket07-3857

StatusUnpublished

This text of 300 F. App'x 436 (United States v. Epifanio Reyes-Nunez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Epifanio Reyes-Nunez, 300 F. App'x 436 (8th Cir. 2008).

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Opinion

PER CURIAM.

Epifanio Reyes-Nunez appeals the sentence imposed by the district court 1 after he pleaded guilty to illegal reentry into the United States. The district court sentenced him to a prison term of 41 months — the low end of his undisputed advisory Guidelines range — and 3 years of supervised release.

To begin, we decline to review the district court’s denial of Reyes-Nunez’s motion for a downward departure. In this case, the district court recognized its authority to depart, and nothing in the record suggests that it had an unconstitutional motive in denying Reyes-Nunez’s motion. See United States v. Johnson, 517 F.3d 1020, 1023 (8th Cir.2008) (decision not to grant downward departure generally not renewable unless district court had unconstitutional motive or erroneously thought it was without authority to grant departure); United States v. Ki-ertzner, 460 F.3d 988, 989 (8th Cir.2006) (per curiam) (discretionary refusal to grant downward departure remains unreviewable after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), as long as district court recognized its authority to depart).

We also conclude that the district court’s imposition of a within-Guidelines-range sentence was reasonable and therefore not an abuse of discretion. See Gall v. United States, — U.S.-, 128 S.Ct. 586, 597, *437 169 L.Ed.2d 445 (2007) (standard of review); United States v. Franklin, 397 F.3d 604, 607 (8th Cir.2005) (as long as there is evidence that court considered relevant matters, court is not required to recite each 18 U.S.C. § 3553(a) factor); see also Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2462, 2469, 168 L.Ed.2d 203 (2007) (court of appeals may apply presumption of reasonableness to sentence that reflects proper application of Guidelines; where record shows that sentencing judge considered evidence and arguments, more extensive writing is not required). Accordingly, we affirm. See 8th Cir. R. 47B.

1

. The Honorable Richard G. Kopf, United States District Judge for the District of Nebraska.

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PER CURIAM.

Epifanio Reyes-Nunez appeals the sentence imposed by the district court 1 after he pleaded guilty to illegal reentry into the United States. The district court sentenced him to a prison term of 41 months — the low end of his undisputed advisory Guidelines range — and 3 years of supervised release.

To begin, we decline to review the district court’s denial of Reyes-Nunez’s motion for a downward departure. In this case, the district court recognized its authority to depart, and nothing in the record suggests that it had an unconstitutional motive in denying Reyes-Nunez’s motion. See United States v. Johnson, 517 F.3d 1020, 1023 (8th Cir.2008) (decision not to grant downward departure generally not renewable unless district court had unconstitutional motive or erroneously thought it was without authority to grant departure); United States v. Ki-ertzner, 460 F.3d 988, 989 (8th Cir.2006) (per curiam) (discretionary refusal to grant downward departure remains unreviewable after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), as long as district court recognized its authority to depart).

We also conclude that the district court’s imposition of a within-Guidelines-range sentence was reasonable and therefore not an abuse of discretion. See Gall v. United States, — U.S.-, 128 S.Ct. 586, 597, *437 169 L.Ed.2d 445 (2007) (standard of review); United States v. Franklin, 397 F.3d 604, 607 (8th Cir.2005) (as long as there is evidence that court considered relevant matters, court is not required to recite each 18 U.S.C. § 3553(a) factor); see also Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2462, 2469, 168 L.Ed.2d 203 (2007) (court of appeals may apply presumption of reasonableness to sentence that reflects proper application of Guidelines; where record shows that sentencing judge considered evidence and arguments, more extensive writing is not required). Accordingly, we affirm. See 8th Cir. R. 47B.

1

. The Honorable Richard G. Kopf, United States District Judge for the District of Nebraska.

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