United States v. Charles Shaw , 256 F. App'x 889 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1480
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Charles Floyd Shaw, *
* [UNPUBLISHED]
Appellant. *
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Submitted: November 21, 2007
Filed: November 28, 2007
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Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
Charles Shaw pleaded guilty to possessing pseudoephedrine, knowing it would
be used to manufacture a controlled substance, in violation of 21 U.S.C. § 841(c)(2).
The district court1 sentenced Shaw to 30 months in prison, which was at the bottom
of the advisory Guidelines range. On appeal, Shaw argues that the district court
abused its discretion when it denied his motion for a downward departure based on
overstated criminal history, and that a sentence below the Guidelines range would
have been reasonable. We reject these arguments and affirm.
1
The Honorable Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri.
Because Shaw does not argue--and the record does not indicate--that the district
court failed to recognize it had authority to depart from the Guidelines, its
discretionary denial of Shaw’s motion is unreviewable. See United States v. Carter,
481 F.3d 601, 607 (8th Cir.), petitions for cert. filed, (U.S. July 11, 2007 & Sept. 7,
2007) (Nos. 07-5323, 07-330). Further, Shaw’s sentence is not unreasonable. See
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. Garate, 482 F.3d 1013, 1017 (8th Cir.) (criminal history may support
variance as part of defendant’s history and characteristics under 18 U.S.C.
§ 3553(a)(1), but primary reliance on factors already considered by Guidelines will
not support substantial variance unless they are present in unusual degree), petition
for cert. filed, (U.S. June 28, 2007) (No. 07-5051); United States v. Rouillard, 474
F.3d 551, 558 (8th Cir. 2007) (“Significant variances based on conduct accounted for
in the Guidelines results in unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct.”).
Accordingly, the judgment is affirmed.
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