United States v. Arin Basurto Cabrera

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-3573
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Arin Basurto Cabrera, *
* [UNPUBLISHED]
Appellant. *
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Submitted: May 14, 2003
Filed: June 9, 2003
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Before BOWMAN, HEANEY, and BYE, Circuit Judges
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PER CURIAM.
Arin Basurto Cabrera pleaded guilty to one count of possession with intent to
distribute methamphetamine and was sentenced to fifty-seven months. The district
court1 denied his motion to depart downward for aberrant behavior and he appeals.
We affirm.
1
The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
Cabrera pleaded guilty on June 14, 2002, to possession with intent to distribute
approximately 434 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1)
& 841(b)(1)(B). The charge arose when Cabrera sold the methamphetamine to a
confidential informant on March 7, 2002. In the presentence interview with the
probation officer who prepared his presentence investigation report Cabrera admitted
he sold a pound of methamphetamine to the same confidential informant three months
earlier.
Based on drug quantity the base offense level for Cabrera's crime was thirty.
Cabrera was given a three-level reduction for acceptance of responsibility. He also
received a two-level safety-valve reduction pursuant to United States Sentencing
Guideline (U.S.S.G.) § 2D1.1(b)(6). The resulting total offense level was twenty-
five. Cabrera had no criminal history points, so his Criminal History Category of I
resulted in an applicable sentencing range of fifty-seven to seventy-one months.
On September 24, 2002, Cabrera filed a motion for downward departure based
on "aberrant behavior" pursuant to U.S.S.G. § 5K2.20. That Guideline provides for
a downward departure if a defendant's criminal conduct constituted aberrant behavior.
"'Aberrant behavior' means a single criminal occurrence or single criminal transaction
that (A) was committed without significant planning; (B) was of limited duration; and
(C) represents a marked deviation by the defendant from an otherwise law-abiding
life." U.S.S.G. § 5K2.20.
Cabrera argued the instant offense and drug sale three months earlier were not
separate incidents, but two parts of one extended criminal occurrence or transaction.
Because his charged crime was part of a lone, "aberrant" criminal act in an otherwise
law-abiding life, Cabrera contended, he qualified for the "aberrant behavior"
departure of § 5K2.20. The district court heard arguments on the motion during the
sentencing hearing on October 2, 2002. The court denied the downward departure
and imposed a sentence of fifty-seven months.
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Cabrera contends the district court erred by not considering whether his crime
was an aberrant behavior. It is well established by this court we do not have the
authority to review the refusal to grant a downward departure, United States v.
Evidente, 894 F.2d 1000,1004-05 (8th Cir. 1990), unless the district court determined
it lacked authority to consider a particular mitigating factor. United States v. Beltran,
122 F.3d 1156, 1158 (8th Cir. 1997) (citation omitted). It is clear from our review of
the record the district court recognized its authority to depart but chose not to do so.
Because the district court recognized its authority to depart and refused, we do not
have jurisdiction to review. Accordingly, this appeal is dismissed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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