United States v. Michael Perez-Barrios ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-3777
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Michael Perez-Barrios
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: November 12, 2018
Filed: February 4, 2019
[Unpublished]
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Before BENTON, BEAM, and ERICKSON, Circuit Judges.
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PER CURIAM.
Michael Perez-Barrios pled guilty, without a plea agreement, to illegal reentry
in violation of 8 U.S.C. § 1326(a) and (b)(1). The district court1 sentenced him to 18
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The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
months’ imprisonment. He appeals. Having jurisdiction under 28 U.S.C. § 1291, this
court affirms.
Perez-Barrios contests the denial of his motion for a downward departure. “A
district court’s refusal to grant a downward departure under the sentencing guidelines
is unreviewable unless the court had an unconstitutional motive in denying the
request or failed to recognize that it had the authority to depart downward.” United
States v. Jefferson, 816 F.3d 1016, 1021 (8th Cir. 2016). He does not allege the
district court had an unconstitutional motive. He also does not show the district court
was unaware of its authority to depart. The court discussed his motion at length,
asked multiple questions, and explained its reason for denying it. The denial of the
motion is thus unreviewable. See United States v. Watson, 480 F.3d 1175, 1177 (8th
Cir. 2007) (declining to review a refusal to depart).
Perez-Barrios also believes his bottom-of-the-guidelines sentence is
unreasonable because the court did not vary downward. This court reviews the
substantive reasonableness of a sentence under an abuse-of-discretion standard,
considering the totality of the circumstances. See United States v. Leonard, 785 F.3d
303, 306 (8th Cir. 2015). “Where, as here, a sentence imposed is within the advisory
guideline range,” this court “typically accord[s] it a presumption of reasonableness.”
United States v. Scales, 735 F.3d 1048, 1052 (8th Cir. 2013). “[I]t will be the unusual
case when we reverse a district court sentence—whether within, above, or below the
applicable Guidelines range—as substantively unreasonable.” United States v.
Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc).
The district court considered Perez-Barrios’s arguments for a lower sentence.
Rejecting the government’s request for a sentence “at the high end of the guideline
range,” it accepted his recommendation that a sentence “on the low end is probably
appropriate.” Fully considering the § 3553(a) factors, it did not abuse its discretion
in sentencing him.
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The judgment is affirmed.
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