United States v. Gregory Nairn

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1683
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Gregory Mark Nairn, *
* [UNPUBLISHED]
Appellant. *
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Submitted: September 19, 2003
Filed: September 26, 2003
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Before RILEY, HANSEN, and SMITH, Circuit Judges.
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PER CURIAM.
Gregory Mark Nairn (Nairn) appeals the sentence the district court1 imposed
after he pled guilty to conspiring to manufacture and distribute 50 grams or more of
methamphetamine (actual), in violation of 21 U.S.C. §§ 841 & 846 (2000) (Count 1);
possessing firearms in furtherance of a drug-trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A) (Count 2); and being a drug user in possession of firearms, in
violation of 18 U.S.C. § 922(g)(3) (Count 3). The court sentenced him to concurrent
prison terms of 120 months (the statutory minimum) on Count 1 and 24 months on
1
The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.
Count 3, and a mandatory consecutive 60-month term on Count 2, plus 5 years
supervised release.
On appeal, for the first time, Nairn argues the district court erred in not
applying a mitigating-role reduction, given his lesser role in the conspiracy offense
and the government’s failure to offer a departure motion despite his cooperation.
After careful review of the record, we conclude the district court did not plainly err
in sentencing Nairn: the court was without authority to sentence him below the
statutory minimum absent a motion by the government, the government was under no
obligation to file a substantial-assistance departure motion, and Nairn made no
showing the government’s decision not to file a departure motion was motivated by
anything other than its belief he had not been truthful. See 18 U.S.C. § 3553(e);
United States v. Wolf, 270 F.3d 1188, 1189-92 (8th Cir. 2001); United States v.
Montanye, 996 F.2d 190, 192 (8th Cir. 1993) (en banc) (standard of review).
Accordingly, we affirm.
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