United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2120
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Juan Gonzalez-Torres, * Southern District of Iowa.
*
Appellant, * [UNPUBLISHED]
*
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Submitted: May 31, 2005
Filed: June 8, 2005
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Before MELLOY, McMILLIAN, and GRUENDER, Circuit Judges.
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PER CURIAM.
Juan Gonzalez-Torres (Gonzalez) pleaded guilty to illegally reentering the
United States after being deported, in violation of 8 U.S.C. § 1326(a). The district
court1 found Gonzalez was subject to a 16-level enhancement based on a prior
conviction, and sentenced him to 70 months in prison and 2 years supervised release.
On appeal, counsel initially filed a brief under Anders v. California, 386 U.S. 738
1
The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
(1967), arguing that the district court erred in not granting a downward departure
from the Guidelines range. Counsel later filed motions in this court (1) to file a
supplemental brief so that he may raise the issue whether the facts underlying
Gonzalez’s 16-level enhancement needed to be found by a jury; and (2) to remand for
resentencing based on Booker v. United States, 125 S. Ct. 738 (2005).
The district court stated at sentencing that reentry under duress was a
permissible basis for departure but did not justify departure here, that Gonzalez’s
criminal history category was appropriately determined, and that Gonzalez’s case was
not extraordinary. These statements indicate the court was aware of its authority to
depart, and thus, the court’s refusal to depart is unreviewable. See United States v.
Mohr, No. 03-3533, 2005 WL 1060574, at *3 (8th Cir. May 6, 2005) (per curiam)
(denial of downward departure unreviewable where district court was aware of its
authority to depart). Gonzalez’s claim that the facts underlying his 16-level
enhancement needed to be found by a jury also fails, as the enhancement was based
on the fact of a prior conviction. See Booker, 125 S. Ct. at 756 (reaffirming that
“[a]ny fact (other than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a plea of guilty or a
jury verdict must be admitted by the defendant or proved to a jury beyond a
reasonable doubt”); United States v. Childs, 403 F.3d 970, 972 (8th Cir. 2005)
(“Booker re-affirmed established Supreme Court precedent that a court, not a jury,
determines the fact of a prior conviction”); United States v. Marcussen, 403 F.3d 982,
984 (8th Cir. 2005) (rejecting argument that nature of prior conviction is to be treated
differently from fact of prior conviction).
Finally, we review for plain error whether Gonzalez’s sentence was illegal
because he was sentenced under mandatory Guidelines, and we conclude that reversal
is not warranted. Although there was error in using the mandatory scheme, and the
error was plain, it did not affect Gonzalez’s substantial rights, as he cannot show a
reasonable probability that, but for the error, he would have received a more favorable
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sentence. See United States v. Pirani, No. 03-2871, slip op. at 12 & n.6 (8th Cir. Apr.
29, 2005) (en banc) (sentencing at bottom of Guidelines range and expressing dislike
of Guidelines was not sufficient to establish reasonable probability that district court
would have imposed more lenient sentence).
We have also carefully reviewed the record in accordance with Penson v. Ohio,
488 U.S. 75 (1988), and have found no nonfrivolous issues. Accordingly, we affirm
the district court’s judgment. We deny the appellate motions.
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