United States v. Martin Soltero-Hernandez

Eighth Circuit

United States v. Martin Soltero-Hernandez

395 F. App'x 304

CourtCourt of Appeals for the Eighth Circuit

DecidedOctober 5, 2010

Docket10-2269

StatusUnpublished

This text of 395 F. App'x 304 (United States v. Martin Soltero-Hernandez) 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. Martin Soltero-Hernandez, 395 F. App'x 304 (8th Cir. 2010).

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Opinion

[UNPUBLISHED]

PER CURIAM.

Martin Soltero-Hernandez challenges the sentence imposed by the district court 1 after he pled guilty to an immigration offense. On appeal, his counsel has moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that the district court committed procedural error by treating the Guidelines as mandatory rather than advisory.

We review the imposition of sentences under a deferential abuse-of-discretion standard, first ensuring that the district court committed no significant procedural error, and then considering the substantive reasonableness of the sentence. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (en banc). We find no abuse of discretion here. First, the court properly recognized its obligation to calculate the advisory Guidelines range based on the Guidelines as they currently existed before deciding whether to depart or vary, and acknowledged its consideration of all the sentencing factors. See id. at 461 (procedural error includes improper application of Guidelines, treating Guidelines as mandatory, failing to consider 18 U.S.C. § 3553(a) factors, selecting sentence based on clearly erroneous facts, or failing to adequately explain sentence). Second, the sentence was imposed within the undisputed Guidelines range, and there is no indication that Soltero-Hernandez would be able to rebut the resulting presumption of reasonableness. See United States v. Valadez, 573 F.3d 553, 556 (8th Cir.2009) (per curiam).

Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we find no nonfrivolous issues for appeal. Accordingly, we affirm the judgment of the district court, and we grant counsel’s motion to withdraw, subject to counsel informing Soltero-Hernandez about proce *306 dures for seeking rehearing or filing a petition for certiorari.

1

. The Honorable Jimm Larry Hendren, Chief Judge, United States District Court for the Western District of Arkansas.

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[UNPUBLISHED]

PER CURIAM.

Martin Soltero-Hernandez challenges the sentence imposed by the district court 1 after he pled guilty to an immigration offense. On appeal, his counsel has moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that the district court committed procedural error by treating the Guidelines as mandatory rather than advisory.

We review the imposition of sentences under a deferential abuse-of-discretion standard, first ensuring that the district court committed no significant procedural error, and then considering the substantive reasonableness of the sentence. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (en banc). We find no abuse of discretion here. First, the court properly recognized its obligation to calculate the advisory Guidelines range based on the Guidelines as they currently existed before deciding whether to depart or vary, and acknowledged its consideration of all the sentencing factors. See id. at 461 (procedural error includes improper application of Guidelines, treating Guidelines as mandatory, failing to consider 18 U.S.C. § 3553(a) factors, selecting sentence based on clearly erroneous facts, or failing to adequately explain sentence). Second, the sentence was imposed within the undisputed Guidelines range, and there is no indication that Soltero-Hernandez would be able to rebut the resulting presumption of reasonableness. See United States v. Valadez, 573 F.3d 553, 556 (8th Cir.2009) (per curiam).

Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we find no nonfrivolous issues for appeal. Accordingly, we affirm the judgment of the district court, and we grant counsel’s motion to withdraw, subject to counsel informing Soltero-Hernandez about proce *306 dures for seeking rehearing or filing a petition for certiorari.

1

. The Honorable Jimm Larry Hendren, Chief Judge, United States District Court for the Western District of Arkansas.

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395 F. App'x 304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-martin-soltero-hernandez-ca8-2010.

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