United States v. Juan Aguilar , 258 F. App'x 67 ( 2007 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 07-2870
    ___________
    United States of America,              *
    *
    Appellee,                  *
    * Appeal from the United States
    v.                               * District Court for the
    * District of Nebraska.
    Juan C. Aguilar,                       *
    * [UNPUBLISHED]
    Appellant.                 *
    ___________
    Submitted: December 12, 2007
    Filed: December 19, 2007
    ___________
    Before LOKEN, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.
    ___________
    PER CURIAM.
    Juan C. Aguilar brings this appeal to challenge the size of the Rule 35(b)
    reduction in sentence that was granted by the district court.1 As we explain below,
    Aguilar’s appeal must be dismissed for lack of appellate jurisdiction.
    Pursuant to a plea agreement, Aguilar pled guilty in November 2003 to
    violating 
    21 U.S.C. §§ 841
     (a)(1), 846 and 
    18 U.S.C. § 924
    (c)(1)(A), conceding that
    he had conspired to traffic in 500 grams or more of methamphetamine and possessed
    1
    The Honorable Warren K. Urbom, United States District Judge for the District
    of Nebraska.
    a firearm in furtherance of the crime. Aguilar agreed to cooperate with other
    government investigations in exchange for the government’s potential request for a
    downward departure or request for a reduced sentence.
    The district court initially sentenced Aguilar to 188 months of imprisonment for
    the drug conspiracy charge, in addition to a mandatory consecutive 60 months for the
    firearm charge. A year later, the government filed a motion to reduce Aguilar’s
    sentence by 25% pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure.
    The district court granted the motion and reduced the drug conspiracy sentence to 134
    months, but maintained the 60 month firearm sentence. In response to a question by
    the Assistant United States Attorney, the district court confirmed that the 60 month
    sentence was to run consecutively with the drug conspiracy sentence. Neither Aguilar
    nor his counsel sought further clarification from the court. Aguilar now argues that
    the district court did not recognize its authority to reduce Aguilar’s sentence for the
    firearm charge.
    Appellate jurisdiction over a defendant’s Rule 35(b) sentence reduction is
    governed by 
    18 U.S.C. § 3742
    (a). United States v. Haskins, 
    479 F.3d 955
    , 957 (8th
    Cir. 2007) (per curiam). Absent an unconstitutional motive, we lack jurisdiction to
    review a district court’s ruling on a Rule 35(b) motion. Id.; United States v. Sykes,
    
    356 F.3d 863
    , 865 (8th Cir. 2004). There is no allegation of an unconstitutional
    motive on the part of the district court. Aguilar suggests that we may review the
    discretionary denial of a motion for a reduction in sentence if the district court
    determined that it lacked the authority to consider such a motion. But he did not
    object to the maintenance of the 60-month firearm sentence and did not seek a
    declaration as to whether the district court had the authority to reduce it. There is no
    basis for Aguilar’s argument.
    The appeal is dismissed for lack of jurisdiction.
    ______________________________
    -2-
    

Document Info

Docket Number: 07-2870

Citation Numbers: 258 F. App'x 67

Judges: Loken, Wollman, Shepherd

Filed Date: 12/19/2007

Precedential Status: Non-Precedential

Modified Date: 11/5/2024