United States v. Ermes Moreno-Meras , 256 F. App'x 882 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1041
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Ermes Moreno-Meras, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 5, 2007
Filed: December 13, 2007
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Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
Ermes Moreno-Meras pleaded guilty to possessing, with intent to distribute,
500 grams or more of a mixture or substance containing a detectable amount of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and b(1). The district court1
calculated an advisory Guidelines range of 135-168 months in prison and sentenced
Moreno-Meras at the bottom of the range. On appeal, Moreno-Meras argues for the
first time that the court’s decision to give the Guidelines “substantial weight” was
contrary to the Supreme Court’s holding in United States v. Booker, 543 U.S. 220(2005). He also asserts that his sentence is unreasonable because it is greater than
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
necessary to promote the statutory goals of sentencing. We reject these arguments and
affirm.
We review for plain error the district court’s decision to give the Guidelines
substantial weight. See United States v. Patterson, 481 F.3d 1029, 1034 (8th Cir.
2007) (failure to raise issue at sentencing results in plain-error review on appeal).
Assuming, without deciding, that the district court committed plain error by according
the advisory Guidelines more weight than the other 18 U.S.C. § 3553(a) factors, see,
e.g., United States v. Sachsenmaier, 491 F.3d 670, 685 (7th Cir. 2007) (district courts
must calculate advisory Guidelines range accurately, but ultimately must sentence
based on § 3553(a) factors “without any thumb on the scale favoring a guideline
sentence”), we conclude that Moreno-Meras has failed to establish a reasonable
probability that he otherwise would have received a more favorable sentence, cf.
United States v. Pirani, 406 F.3d 543, 552-53 (8th Cir. 2005) (en banc) (under plain-
error review defendant must show reasonable probability that, but for Booker error,
he would have received more favorable sentence under advisory Guidelines).
We also conclude that Moreno-Meras’s sentence is not unreasonable. See Rita
v. United States, 127 S. Ct. 2456, 2462 (2007) (approving appellate presumption of
reasonableness); United States v. Garlewicz, 493 F.3d 933, 938 (8th Cir. 2007)
(presumption of reasonableness is accorded sentence within properly calculated
Guidelines range); United States v. Long Soldier, 431 F.3d 1120, 1123 (8th Cir. 2005)
(reasonableness of sentence is reviewed for abuse of discretion, which occurs if court
fails to consider relevant factor that should have received significant weight, gives
significant weight to improper or irrelevant factor, or considers only appropriate
factors but commits clear error of judgment in weighing factors); see also United
States v. Turbides-Leonardo, 468 F.3d 34, 41 (1st Cir. 2006) (it is rare for Guidelines
sentence to be higher than necessary to achieve statutory goals of sentencing), cert.
denied, 127 S. Ct. 3064 (2007).
Accordingly, the judgment is affirmed.
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