United States v. Jesus Garcia-Chavez ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-4237
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Jesus Garcia-Chavez, also known as * Northern District of Iowa.
Luis Hernandez-Chavez, also known *
as Luis Hernandez-Gomez, * [UNPUBLISHED]
*
Appellant. *
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Submitted: June 3, 1997
Filed: August 18, 1997
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Before HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges.
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PER CURIAM.
Jesus Garcia-Chavez challenges the sentence imposed by the district court1 after
he pleaded guilty to illegal re-entry of the United States following deportation, in
violation of 8 U.S.C. § 1326(a) and (b)(2). We affirm.
The presentence report (PSR) calculated a total offense level of 21, including a
sixteen-level enhancement under U.S. Sentencing Guidelines Manual § 2L1.2(b)(2)
1
The Honorable Donald E. O'Brien, United States District Judge for the Northern
District of Iowa.
(1995) (enhancement applies if defendant deported after conviction for "aggravated
felony"), because Garcia-Chavez had been deported based on a Nebraska felony
conviction for possessing over one pound of marijuana, which the PSR indicated was
an aggravated felony. At sentencing, Garcia-Chavez argued, among other things, that
the Nebraska conviction fell outside the "heartland of cases" for which the enhancement
was intended, and that the district court therefore had discretion under Koon v. United
States, 116 S. Ct. 2035, 2045, 2047 (1996), to depart from the Guidelines. The district
court refused to depart, and sentenced Garcia-Chavez to 46 months imprisonment, to
be followed by two years supervised release unless Garcia is first deported upon
completing his 46-month sentence.
On appeal, Garcia-Chavez contends the district court erred by determining it
lacked authority to depart downward under Koon. After carefully reviewing the
sentencing transcript, however, we conclude that the court believed it had the authority
to depart, but determined departure was not warranted here. Thus, the district court's
departure decision is unreviewable. See United States v. Field, 110 F.3d 587, 591 (8th
Cir. 1997) (appellate court may not review district court's decision not to depart if
district court was aware of its departure authority).
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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