United States v. Selvin Hernandez-Florez

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-1308
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Selvin Rene Hernandez-Florez, * Northern District of Iowa.
*
Appellant. * [UNPUBLISHED]
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Submitted: August 1, 2008
Filed: August 7, 2008
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Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.
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PER CURIAM.
Selvin Rene Hernandez-Florez appeals the 15-month prison sentence imposed
by the district court1 after he pleaded guilty to an immigration charge, in violation of
8 U.S.C. § 1326(a). Hernandez-Florez’s counsel has filed a brief under Anders v.
California, 386 U.S. 738 (1967), and moves to withdraw. For reversal, he argues that
the court abused its discretion by departing upward pursuant to U.S.S.G. § 4A1.3.
Reviewing the district court’s application of the Guidelines de novo, and the court’s
ultimate sentence for reasonableness under an abuse-of-discretion standard, see United
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
States v. Akers, 476 F.3d 602, 605 (8th Cir.), cert. denied, 128 S. Ct. 101 (2007), we
affirm.
Specifically, we see no basis in the record for concluding that the district court
abused its discretion in departing under section 4A1.3 based on its finding that
Hernandez-Florez’s criminal history was substantially under-represented, and that he
was likely to engage in further criminal conduct. See U.S.S.G. 4A1.3(a)(1), (2) (if
reliable information indicates defendant’s criminal history category substantially
under-represents seriousness of criminal history or likelihood that defendant will
commit other crimes, upward departure may be warranted; court may look to, among
other things, prior sentence not used in computing criminal history and similar
conduct not resulting in conviction).
According to undisputed facts in the presentence report (PSR), in addition to
his prior convictions, which earned him only three criminal history points, Hernandez-
Florez had had multiple encounters with police for gang-related and violent conduct,
as well as public intoxication and possession of drugs, among other things. He also
had a history of using aliases and false birth dates so that his true criminal history was
not readily available to authorities, resulting in leniency. See United States v.
Rouillard, 474 F.3d 551, 553 n.1 (8th Cir. 2007) (court may consider specific facts
underlying arrests, and may accept as true any unobjected-to facts set forth in PSR);
United States v. Schwalk, 412 F.3d 929, 933-34 (8th Cir. 2005) (court did not abuse
discretion in considering defendant’s history of relatively minor offenses that were not
counted in his criminal history score in departing upward); United States v. Herr, 202
F.3d 1014, 1017 (8th Cir. 2000) (no abuse of discretion in departing upward under
§ 4A1.3 where defendant’s repeated violations showed disrespect for law and that
leniency had not been effective).
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Upon reviewing the record under Penson v. Ohio, 488 U.S. 75, 80 (1988), we
find there are no other nonfrivolous issues for appeal. Accordingly, we affirm, and we
grant counsel leave to withdraw.
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