United States v. Jorge Pablo-Lepe

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2837
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Jorge Eduardo Pablo-Lepe, also known *
as Jorge Lopez Cortez, * [UNPUBLISHED]
*
Appellant. *
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Submitted: March 17, 2005
Filed: March 31, 2005
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Before WOLLMAN, MURPHY, and BENTON, Circuit Judges.
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PER CURIAM.
In this direct criminal appeal, Jorge Pablo-Lepe challenges the sentence the
district court1 imposed after he pleaded guilty to an immigration offense. He argues
that (1) the district court erred in holding the federal Sentencing Guidelines
unconstitutional; and (2) even if the Guidelines are unconstitutional, the court erred
by imposing a discretionary sentence that was unguided by the applicable Guidelines
range.
1
The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.
These arguments fail. First, during the pendency of this appeal, the Supreme
Court held in United States v. Booker, 125 S. Ct. 738, 765-67 (2005), that the federal
Sentencing Guidelines are unconstitutional insofar as they are mandatory, and thus
they are merely advisory; and that appellate courts should review post-Booker
sentences for reasonableness. Second, we find that the sentence imposed was neither
unguided nor unreasonable. The district court took the Guidelines into account by
recognizing the Guidelines range, see United States v. Yahnke, 395 F.3d 823, 824
(8th Cir. 2005) (district courts, while not bound by Guidelines, must take them into
account in sentencing), but the court chose to impose a higher sentence based on
Pablo-Lepe’s history and characteristics, and the need to protect the public from
future harm by him, see Booker, 125 S. Ct. at 764-65 (18 U.S.C. § 3553(a) guides
appellate determination of reasonableness); Yahnke, 395 F.3d at 825-26 (affirming,
as reasonable, sentence based on § 3553(a) factors of history and characteristics of
defendant and need to protect public).
Accordingly, we affirm.
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