United States v. R. Gamboa-Jimenez ( 1996 )

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No. 96-1048
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Rene Gamboa-Jimenez, also known * Eastern District of Missouri.
as Henry Valles-Rodriguez, * [UNPUBLISHED]
*
Appellant. *
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Submitted: August 7, 1996
Filed: August 16, 1996
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Before FAGG, WOLLMAN, and MURPHY, Circuit Judges.
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PER CURIAM.
Rene Gamboa-Jimenez (Gamboa) challenges the 16-month sentence
imposed by the district court1 upon his guilty plea to unlawfully
entering the United States after having been deported, in violation
of 8 U.S.C. § 1326. We affirm.
At sentencing, Gamboa requested that the district court depart
downward under U.S.S.G. § 5K2.11, p.s. (Lesser Harms). He asserted
he had reentered the country for treatment of a serious injury,
perceiving that his inability to obtain adequate medical treatment
in his native country was a greater harm than that engendered by
unlawfully reentering this country. The district court rejected
his request, instead offering to recommend to the Bureau of Prisons
that Gamboa be placed in a medical facility. Responding to a
suggestion in the presentence report, the court noted several
1
The Honorable Charles A. Shaw, United States District Judge
for the Eastern District of Missouri.
arrest warrants were pending against Gamboa, but declined to depart
upward under U.S.S.G. § 4A1.3 (Adequacy of Criminal History
Category).
Gamboa now argues that, because the district court believed it
could depart upward under section 4A1.3, the court apparently
believed it was precluded from departing downward under section
5K2.11. We may review the district court's refusal to depart only
if it "is premised on the belief that the court lacked the
authority to [depart]." United States v. Jenkins, 78 F.3d 1283,
1290 (8th Cir. 1996). Having carefully reviewed the sentencing
transcript, we conclude the court was aware of its authority to
depart under section 5K2.11 and exercised its discretion not to do
so, and thus we may not further review the district court's
decision.
Accordingly, the judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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