United States v. Jose Rubio ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2162
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Jose Gustavo Rubio, *
* [UNPUBLISHED]
Appellant. *
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Submitted: March 28, 2006
Filed: April 5, 2006
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Before WOLLMAN, MURPHY, and COLLOTON, Circuit Judges.
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PER CURIAM.
Jose Gustavo Rubio appeals the sentence imposed by the district court1 after he
pleaded guilty to conspiracy to distribute and possess with intent to distribute 500
grams or more of a methamphetamine mixture, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), and 846, and to one count of criminal forfeiture. In a brief filed under
Anders v. California, 386 U.S. 738 (1967), counsel argues that Rubio’s 168-month
prison sentence, imposed upon consideration of an advisory Guidelines imprisonment
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
range of 168-210 months, is unreasonable with regard to 18 U.S.C. § 3553(a), and that
Rubio should instead have been sentenced to the 120-month statutory minimum.
We note that the sentence imposed comports with Rubio’s plea agreement and
the unobjected-to calculations in the presentence report. We have found nothing in
the record to rebut the presumption that the sentence is reasonable. See United States
v. Lincoln, 413 F.3d 716, 717-18 (8th Cir.) (sentence within Guidelines range gives
rise to presumption of reasonableness, which defendant must rebut), cert. denied,
126 S. Ct. 840 (2005). Although Rubio had no prior convictions, the instant offense
involved a large quantity of methamphetamine, and the district court, having
considered the section 3553(a) factors, showed some leniency by sentencing Rubio
at the bottom of the advisory Guidelines range.
After reviewing the record independently under Penson v. Ohio, 488 U.S. 75
(1988), we have found no nonfrivolous issues. Accordingly, we affirm the judgment
of the district court.
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