United States v. Gustavo Lopez-Tapia , 111 F. App'x 867 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3807
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska
Gustavo Lopez-Tapia, *
* [UNPUBLISHED]
Appellant. *
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Submitted: October 7, 2004
Filed: November 12, 2004
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Before WOLLMAN, McMILLIAN and RILEY, Circuit Judges.
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PER CURIAM.
Gustavo Lopez-Tapia appeals from the final judgment entered in the District
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Court for the District of Nebraska upon his plea of guilty to conspiring to distribute
and possess with intent to distribute methamphetamine, in violation of 21 U.S.C.
§ 846 and 18 U.S.C. § 2. The district court sentenced appellant to 240 months
imprisonment and 10 years supervised release. For reversal, counsel for appellant
argues the district court abused its discretion in denying a motion for downward
departure based on family hardship. Appellant has moved pro se to file a
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The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska.
supplemental brief based on Blakely v. Washington, 124 S. Ct. 2531 (2004). For the
reasons discussed below, we affirm the judgment of the district court.
After carefully reviewing the record, and in particular the written and oral
remarks of the district court, we conclude that the court was fully aware of its
authority to depart downward but declined to do so based on the facts of this case.
Thus, we hold that the district court made a discretionary decision not to depart
downward, which is unreviewable. See United States v. Walterman, 343 F.3d 938,
942 (8th Cir. 2003).
Given that appellant received the statutory minimum sentence, see 21 U.S.C.
§ 841(b)(1)(A), with no enhancements based on judicially found facts, we conclude
that supplemental briefing based on Blakely is unnecessary.
Accordingly, we deny the pending motion, and we affirm the judgment of the
district court.
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