United States v. Alejandro Rivera , 159 F. App'x 748 ( 2006 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 04-4016
    ___________
    United States of America,                *
    *
    Appellee,                   *
    * Appeal from the United States
    v.                                 * District Court for the
    * District of Nebraska
    Alejandro Rivera,                        *
    * [UNPUBLISHED]
    Appellant.                  *
    ___________
    Submitted: November 30, 2005
    Filed: January 3, 2006
    ___________
    Before BYE, McMILLIAN, and RILEY, Circuit Judges.
    ___________
    PER CURIAM.
    Alejandro Rivera appeals from the final judgment entered in the District Court1
    for the District of Nebraska upon his guilty plea to distributing and possessing with
    intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1),
    and to a forfeiture count under 21 U.S.C. § 853. The district court sentenced Rivera
    to 70 months imprisonment and 5 years supervised release. For reversal Rivera now
    argues (though he did not so object below) that the district court erred in viewing the
    Sentencing Guidelines as mandatory, which resulted in an unreasonable sentence
    1
    The Honorable Laurie Smith Camp, United States District Judge for the
    District of Nebraska.
    under United States v. Booker, 
    125 S. Ct. 738
    (2005). For the following reasons, we
    affirm the judgment of the district court.
    While the district court plainly erred in sentencing Rivera under mandatory
    Guidelines, we conclude that the error was not prejudicial because the record does not
    establish a reasonable probability that Rivera would have received a more favorable
    sentence under an advisory Guidelines scheme. See United States v. Pirani, 
    406 F.3d 543
    , 550-53 (8th Cir.) (en banc), cert. denied, 
    126 S. Ct. 266
    (2005). We also
    conclude that the sentence is not unreasonable. See United States v. Booker, 125 S.
    Ct. at 765-66 (appellate courts now review sentences for unreasonableness; 18 U.S.C.
    § 3553(a) sets forth factors that guide sentencing and in turn will guide appellate
    courts in determining whether sentence is reasonable).
    Accordingly, we affirm.
    ______________________________
    -2-
    

Document Info

Docket Number: 04-4016

Citation Numbers: 159 F. App'x 748

Filed Date: 1/3/2006

Precedential Status: Non-Precedential

Modified Date: 1/12/2023