United States v. Randall Gilbert ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-1143
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Randall Mark Gilbert
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: February 9, 2021
Filed: February 12, 2021
[Unpublished]
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Before BENTON, MELLOY, and KELLY, Circuit Judges.
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PER CURIAM.
Randall Gilbert appeals the below-Guidelines sentence imposed by the district
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court after he pleaded guilty to a drug offense. His counsel has moved for leave to
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The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.
withdraw, and has filed a brief under Anders v. California, 386 U.S. 738 (1967),
arguing that the district court erred by failing to grant a downward departure and that
the sentence is unreasonable.
Upon careful review, we conclude that we lack authority to review the district
court’s decision not to depart downward, as there is no indication that the district
court failed to recognize its authority to depart downward. See United States v.
Dixon, 650 F.3d 1080, 1084 (8th Cir. 2011) (district court’s refusal to grant
downward departure is unreviewable unless court had unconstitutional motive in
denying request or failed to recognize its authority to depart downward). We also
conclude that the district court did not impose a substantively unreasonable sentence,
as the court properly considered the factors listed in 18 U.S.C. § 3553(a) and did not
err in weighing the relevant factors. See United States v. Feemster, 572 F.3d 455,
461-62 (8th Cir. 2009) (sentences are reviewed for substantive reasonableness under
deferential abuse of discretion standard; abuse of discretion occurs when court fails
to consider relevant factor, gives significant weight to improper or irrelevant factor,
or commits clear error of judgment in weighing appropriate factors). Further, the
court imposed a sentence below the Guidelines range. See United States v.
McCauley, 715 F.3d 1119, 1127 (8th Cir. 2013) (noting that when district court has
varied below Guidelines range, it is “nearly inconceivable” that court abused its
discretion in not varying downward further).
We have also independently reviewed the record under Penson v. Ohio, 488
U.S. 75 (1988), and we find no non-frivolous issues for appeal. Accordingly, we
affirm the judgment, and we grant counsel’s motion to withdraw.
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