United States v. J. Ontiveros-Carreon , 215 F. App'x 557 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-4226
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Juan Ontiveros-Carreon, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 5, 2007
Filed: February 5, 2007
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Before RILEY, MAGILL, and MELLOY, Circuit Judges.
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PER CURIAM.
Juan Ontiveros-Carreon pleaded guilty to illegally reentering the United States
after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). The district court1
sentenced Carreon to 50 months in prison and 3 years of supervised release. On
appeal, his attorney has moved to withdraw and filed a brief under Anders v.
California, 386 U.S. 738 (1967), arguing that the sentence was unreasonable because
Carreon had not committed any crimes other than illegally returning to the United
States.
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The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
Upon review, we conclude that the reasonableness argument is without merit.
The district court noted Carreon’s history of illegally reentering the United States,
which can be construed as consideration of Carreon’s history and characteristics. See
18 U.S.C. § 3553(a)(1) (factors to be considered in imposing sentence include nature
and circumstances of offense and history and characteristics of defendant); United
States v. Long Soldier, 431 F.3d 1120, 1123 (8th Cir. 2005) (relevant inquiry is not
whether district court quoted or cited § 3553(a), but whether court actually considered
§ 3553(a) factors and whether appellate court’s review of those factors leads it to
conclude that they support finding of reasonableness); United States v. Lamoreaux,
422 F.3d 750, 756 (8th Cir. 2005) (nothing in § 3553(a) requires “robotic
incantations” that each factor was considered). Further, the 50-month sentence was
reasonable in light of not only Carreon’s history of repeatedly entering the United
States illegally, but also his prior violent felony conviction for aggravated indecent
liberties with a minor, which suggests a need to protect the public from further crimes.
See 18 U.S.C. § 3553(a)(2)(C) (factors to be considered in imposing sentence include
need to protect public from further crimes of defendant). Finally, the 50-month prison
sentence was within the undisputed Guidelines range, and Carreon has not rebutted
the resulting presumption of reasonableness. See United States v. Tobacco, 428 F.3d
1148, 1151 (8th Cir. 2005) (presumptively reasonable sentence can be unreasonable
if district court (1) failed to consider relevant fact that should have received significant
weight; (2) gave significant weight to improper or irrelevant factor; or (3) considered
only appropriate factors, but in weighing those factors committed clear error of
judgment); United States v. Lincoln, 413 F3d 716, 717-18 (8th Cir.) (sentence within
Guidelines range is presumptively reasonable; defendant bears burden to rebut
presumption of reasonableness), cert. denied, 126 S. Ct. 840 (2005).
Having found no nonfrivolous issues for appeal upon our independent review
pursuant to Penson v. Ohio, 488 U.S. 75 (1988), we affirm the judgment of the district
court, and we grant counsel’s motion to withdraw.
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