United States v. Nieto

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 13, 2001
• Docket: 00-40927
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40927 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAVIER NIETO,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. C-00-CR-138-2 - - - - - - - - - - June 13, 2001

Before WIENER, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

Javier Nieto appeals his sentence following his conviction

for knowingly transporting illegal aliens by means of a motor

vehicle, 8 U.S.C. §§ 1324(a)(1)(A)(ii) and 1326(a)(1)(B)(ii). We

have reviewed the record and the briefs of the parties, and we

discern no reversible error.

Nieto’s 12-month sentence was within the applicable

sentencing guidelines range, was not imposed in violation of law,

and was not unreasonable given the statutory maximum. His $3,500

fine also was within the guidelines range of $2,000 to $20,000

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-40927 -2-

and was substantially less than the statutory maximum of

$250,000. U.S.S.G. § 5E1.2(c)(3); 18 U.S.C. § 3571(b)(3).

That codefendant Ernesto Erias-Rodriguez received a lesser

sentence provides no basis for relief. The fact that another

party received a lower sentence than did Nieto does not alone

make Nieto’s otherwise legal sentence a violation of the

Sentencing Guidelines. United States v. Puma, 937 F.2d 151, 156

(5th Cir. 1992).

Additionally, U.S.S.G. § 6B1.2(b)(1) states that the court

may accept a sentencing recommendation if it is within the

guidelines, but it does not require the court to do so. United

States v. Medina-Saldana, 911 F.2d 1023, 1024-25 (5th Cir. 1990).

Nor is the district court required to make an elaborate statement

of its reasons for a sentence imposed within the applicable

guidelines range when the facts are undisputed and the court’s

calculation of the sentencing range under the guidelines is

correct. Id.

Nieto’s arguments on appeal are wholly without merit. His

appeal is DISMISSED as frivolous. See Howard v. King, 707 F.2d

215, 219-20 (5th Cir. 1983); 5th Cir. R. 42.2.