United States v. Marcos Jimenez , 403 F. App'x 120 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2525
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Northern District of Iowa.
*
Marcos Antonio Ramos Jimenez, * [UNPUBLISHED]
also known as Gilberto Martinez, *
*
Appellant. *
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Submitted: November 18, 2010
Filed: December 7, 2010
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Before LOKEN, MURPHY, and BENTON, Circuit Judges.
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PER CURIAM.
In this direct criminal appeal, Marcos Antonio Ramos Jimenez (Jimenez)
challenges the 63-month prison sentence imposed by the district court1 after he pled
guilty to illegal reentry into the United States after being deported following
aggravated felony convictions, in violation of 8 U.S.C. § 1326(a), (b)(2). On appeal,
counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S.
738 (1967), arguing that (1) the district court abused its discretion by departing
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
upwards 4 levels on Jimenez’s offense level based on its determination that Jimenez’s
criminal history score underrepresented the seriousness of his criminal history and the
likelihood that he would recidivate, see U.S.S.G. § 4A1.3(a); (2) the extent of the
departure is unreasonable; and (3) the overall sentence is unreasonable. Jimenez has
filed a pro se brief raising additional issues.
We review a district court’s decision to depart upwards for abuse of discretion,
and the extent of that departure for reasonableness. See United States v. Ruvalcava-
Perez, 561 F.3d 883, 886 (8th Cir. 2009). We find no abuse of discretion, as the court
explained that it based its departure on the nature of Jimenez’s criminal history, the
likelihood that he would recidivate, and the ineffectiveness of prior lenient treatment.
See United States v. Cook, 615 F.3d 891, 893-94 (8th Cir. 2010). Further, we find the
extent of the departure reasonable. See United States v. Maurstad, 454 F.3d 787, 789-
90 (8th Cir. 2006).
The overall sentence is reviewed under a deferential abuse-of-discretion
standard, first ensuring that the district court committed no significant procedural
error, and then considering the substantive reasonableness of the sentence. See United
States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). We find no abuse of
discretion. The court recognized the advisory nature of the Guidelines, properly
calculated the Guidelines range after departing upwards, and acknowledged its
consideration of all the sentencing factors. See id. at 461 (procedural error includes
improper application of Guidelines, treating Guidelines as mandatory, failing to
consider 18 U.S.C. § 3553(a) factors, selecting sentence based on clearly erroneous
facts, or failing to adequately explain sentence). The sentence imposed was within the
Guidelines range calculated after applying the departure, and there is no indication
that Jimenez would be able to rebut the resulting presumption of reasonableness. See
United States v. Linderman, 587 F.3d 896, 901 (8th Cir. 2009); United States v.
Cadenas, 445 F.3d 1091, 1094 (8th Cir. 2006).
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Turning to Jimenez’s pro se arguments, there is no merit to his contention that
international law was somehow violated, and his ineffective-assistance claim is not
properly raised in this direct appeal. See United States v. Ramirez-Hernandez, 449
F.3d 824, 827 (8th Cir. 2006).
We reviewed the record independently under Penson v. Ohio, 488 U.S. 75(1988), and found no nonfrivolous issues for appeal. We affirm the judgment of the
district court, and deny Jimenez’s pending motion for appointment of counsel.
Counsel’s motion to withdraw is granted, subject to counsel informing Jimenez about
procedures for seeking rehearing or filing a petition for certiorari.
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