United States v. Jose Luis Rios-Muro ( 2006 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 04-3542
    ___________
    United States of America,                *
    *
    Appellee,                   *
    * Appeal from the United States
    v.                                 * District Court for the
    * District of Minnesota.
    Jose Luis Rios-Muro,                     *
    * [UNPUBLISHED]
    Appellant.                  *
    ___________
    Submitted: January 12, 2006
    Filed: January 12, 2006
    ___________
    Before ARNOLD, BYE, and SMITH, Circuit Judges.
    ___________
    PER CURIAM.
    Jose Luis Rios-Muro appeals the sentence the district court1 imposed following
    his guilty plea to illegally reentering the United States after having been convicted of
    an aggravated felony (burglary) and deported, in violation of 8 U.S.C. § 1326(a) and
    (b)(2). Rios-Muro argues that the district court should have departed downward based
    on overstated criminal history and based on cultural assimilation. He also argues that
    the district court impermissibly double counted the burglary conviction, by using it
    both to enhance his base offense level and to compute his criminal history.
    1
    The Honorable John R. Tunheim, United States District Judge for the District
    of Minnesota.
    These arguments fail. First, the district court’s decision not to grant a
    downward departure based on overstated criminal history is unreviewable. See United
    States v. Frokjer, 
    415 F.3d 865
    , 874 (8th Cir. 2005) (denial of downward departure
    is unreviewable unless district court had unconstitutional motive or erroneously
    believed it lacked authority to depart). Second, Rios-Muro did not move below for
    a departure based on cultural assimilation, and the district court did not plainly err in
    not departing sua sponte. See United States v. Montanye, 
    996 F.2d 190
    , 192 (8th Cir.
    1993) (en banc) (standard of review). Third, the district court did not err in
    considering Rios-Muro’s burglary conviction in computing both his offense level and
    his criminal history. See U.S.S.G. § 2L1.2, comment. (n.6) (“conviction taken into
    account under . . . [U.S.S.G. § 2L1.2(b)(1)] is not excluded from consideration of
    whether that conviction receives criminal history points”); cf. United States v. Dyck,
    
    334 F.3d 736
    , 740 (8th Cir. 2003) (in illegal-reentry case, defendant’s prior
    drug-trafficking conviction could be used both to enhance his base offense level
    pursuant to § 2L1.2(b)(1) and to compute his criminal history category).
    Accordingly, we affirm.
    ______________________________
    -2-
    

Document Info

Docket Number: 04-3542

Judges: Arnold, Bye, Per Curiam, Smith

Filed Date: 1/12/2006

Precedential Status: Non-Precedential

Modified Date: 11/5/2024