United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2079
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of Nebraska.
*
Octavio Barron, * [UNPUBLISHED]
*
Appellant. *
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Submitted: February 13, 2006
Filed: February 17, 2006
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Before WOLLMAN, FAGG, and ARNOLD, Circuit Judges.
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PER CURIAM.
Octavio Barron pleaded guilty to conspiracy to distribute and possess with
intent to distribute five hundred grams or more of methamphetamine. The
presentence report (PSR) recommended an advisory guidelines range of 121 to 151
months. Barron did not object to the PSR. Before sentencing, Barron filed a motion
requesting a downward departure on the ground that his criminal history category of
IV oversstated the seriousness of some of his earlier offenses–property damage, theft,
and possession of a small quantity of marijuana. Barron argued the district court*
*
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
should reduce his criminal history by two points, placing him in a guidelines range
of 108 to 135 months. After observing that a statutory mandatory minimum of 120
months applied, the court stated it had carefully reviewed Barron’s downward
departure motion and would deny it because Barron’s criminal history was not
“overstated either from the viewpoint of the description of the criminal behavior or
its predictive value [for] recidivism.” The court sentenced Barron to 136 months in
prison and five years of supervised release. On appeal, Barron argues the district
court committed error in denying his downward departure motion.
Section 4A1.3(b)(1) of the federal sentencing guidelines provides a downward
departure may be warranted if reliable information shows a defendant’s criminal
history category substantially overrepresents the seriousness of the defendant’s
criminal history or the likelihood that the defendant will commit other crimes. In the
case at hand, the district court acknowledged Barron had filed a motion for a
downward departure based on the overrepresentation of his criminal history. The
district court clearly recognized its authority to depart and simply chose not to do so.
Under the circumstances, the district court’s refusal to depart is not reviewable.
United States v. Morell, 429 F.3d 1161, 1164 (8th Cir. 2005). Further, the district
court correctly calculated the applicable guidelines range and imposed a sentence
reflecting consideration of the factors in 18 U.S.C. § 3553(a). Thus, Barron’s
sentence is reasonable.
Accordingly, we affirm Barron’s sentence.
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