United States v. Hilario Avila

• Court: Court of Appeals for the Eighth Circuit
• Decided: January 25, 2000
• Docket: 99-1124
• Status: Unpublished

Opinion

United States Court of Appeals FOR THE EIGHTH CIRCUIT _____________

No. 99-1124SI _____________

United States of America, * * On Appeal from the United Appellee, * States District Court * for the Southern District v. * of Iowa. * Hilario Avila, * [Not To Be Published] * Appellant. * ___________

Submitted: January 4, 2000 Filed: January 25, 2000 ___________

Before RICHARD S. ARNOLD, FLOYD R. GIBSON, and HANSEN, Circuit Judges. ___________

PER CURIAM.

Hilario Avila appeals from the final judgment of the District Court1 after he pleaded guilty to a one-count indictment for possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a). On appeal, counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), suggesting the District Court

1 The Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa. erred in not granting Avila a downward departure, and in imposing a 2-level obstruction-of-justice enhancement.

We conclude the District Court’s refusal to depart downward is unreviewable, because its statements, taken as a whole, indicate it was aware of its authority to depart downward and it exercised its discretion not to do so. See United States v. Knight, 96 F.3d 307, 311 (8th Cir. 1996). We further conclude the District Court did not err in imposing a 2-level sentencing enhancement for obstruction of justice, because Avila’s fear for his safety does not excuse the fact that he eluded authorities for over a year. See U. S. Sentencing Guidelines Manual § 3C1.1 (1998); United States v. Taylor, 997 F.2d 1551, 1559-60 (D.C. Cir. 1993); United States v. Lyon, 959 F.2d 701, 707 (8th Cir. 1992).

In accordance with Penson v. Ohio, 488 U.S. 75, 80 (1988), we have reviewed the record for any nonfrivolous issues and have found none. We grant counsel’s motion to withdraw.

Accordingly, we affirm.

A true copy.

Attest:

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

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