United States v. Kyla Forbes , 563 F. App'x 510 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-1022
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Kyla Nicole Forbes
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: June 9, 2014
Filed: June 26, 2014
[Unpublished]
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Before LOKEN, BEAM, and GRUENDER, Circuit Judges.
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PER CURIAM.
Kyla Nicole Forbes pleaded guilty to conspiring to distribute methamphetamine
and to launder money in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846 and 18
U.S.C. § 1956(h). She appeals her 75-month prison sentence, arguing the district
court1 committed three sentencing errors. We affirm.
First, Forbes argues the district court erred in assessing one criminal history
point for a 2005 Iowa state court conviction for theft in the third degree because the
state court imposed a deferred judgment that was later expunged when she
successfully discharged the term of probation. See Iowa Code § 907.3(1). However,
we expressly rejected this same argument in United States v. Townsend, 408 F.3d
1020, 1023-25 (8th Cir. 2005). Forbes urges us “to reconsider and overrule
Townsend,” but as a panel we may not do so.
Second, Forbes argues the district court erred in failing to grant a downward
departure because Forbes’s criminal history category under the advisory Guidelines
“substantially over-represents the seriousness of [her] criminal history.” U.S.S.G.
§ 4A1.3(b)(1). At sentencing, the district court stated: “certainly I’m aware I can
depart based upon that ground . . . . In this particular case, I decline to depart.”
Absent a showing of unconstitutional motive, a district court’s refusal to grant a
downward departure is not reviewable on appeal when “the sentencing transcript
shows that the court was aware of its authority to depart.” United States v. Heath, 624
F.3d 884, 888 (8th Cir. 2010), cert. denied, 131 S. Ct. 2164 (2011).
Third, Forbes argues the district court erred in failing to grant a downward
variance from an advisory guidelines sentencing range based upon methamphetamine
guidelines that were the result of congressional mandates, rather than Sentencing
Commission empirical data, and are excessive. We have repeatedly held that, while
a district court may vary categorically from a particular guideline based on a policy
disagreement, it is not required to do so, and “our appellate role is limited to
1
The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.
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determining the substantive reasonableness of a specific sentence.” United States v.
Talamantes, 620 F.3d 901, 902 (8th Cir. 2010) (quotation omitted). The sentence
imposed on Forbes was not substantively unreasonable.
The judgment of the district court is affirmed.
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