United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1274
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri.
*
Jamie Wesley, * [UNPUBLISHED]
*
Appellant. *
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Submitted: August 31, 2005
Filed: October 12, 2005
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Before MURPHY, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
Jamie Wesley challenges the sentence the district court1 imposed after he
pleaded guilty to drug and firearm charges. At sentencing, Wesley moved for a
downward departure under U.S.S.G. § 4A1.3 based on overstatement of his criminal
history. The district court denied the motion and sentenced him to 135 months
imprisonment and 5 years supervised release. On appeal, Wesley argues that the
district court should have granted the downward departure, and that his sentence is
unreasonable.
1
The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri.
Upon careful review of the record, we find that the district court’s denial of the
downward departure under the Guidelines was an unreviewable exercise of
discretion. See United States v. Frokjer, 415 F.3d 865, 874 (8th Cir. 2005) (district
court’s denial of downward departure unreviewable unless court had unconstitutional
motive or erroneously believed it was without authority to depart).
Further, the district court properly utilized the Guidelines as advisory and
considered the sentencing factors in 18 U.S.C. § 3553(a). Therefore, there was no
error under United States v. Booker, 125 S. Ct. 738, 756-57 (2005) (Guidelines are
only advisory). See United States v. Pirani, 406 F.3d 543, 551 (8th Cir.2005) (en
banc) (holding Booker error is avoided when district court calculates proper
Guidelines sentencing range, treats Guidelines as advisory, and imposes reasonable
sentence), petition for cert. filed, (U.S. July 27, 2005) (No. 05-5547).
Finally, we conclude that Wesley’s sentence was not unreasonable: the
sentence was within the Guidelines range, and the district court explicitly stated it
considered the sentencing factors listed in section 3553(a). See United States v.
Lincoln, 413 F.3d 716, 717 (8th Cir. 2005) (sentence within Guidelines range
presumptively reasonable; presumption not rebutted where district court expressly
considered § 3553(a) factors).
Accordingly, we affirm.
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