United States v. Serafin Lopez-Flores , 143 F. App'x 734 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1339
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of Nebraska.
*
Serafin Lopez-Flores, also known as * [UNPUBLISHED]
Antonio Lopez, *
*
Appellant. *
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Submitted: September 13, 2005
Filed: September 21, 2005
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Before LOKEN, Chief Judge, WOLLMAN and BYE, Circuit Judges.
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PER CURIAM.
Serafin Lopez-Flores appeals the sentence imposed by the district court1 upon
him claiming error for overstating his criminal history. He also contends the district
court impermissibly relied upon the Sentencing Guidelines and the ultimate sentence
was higher than necessary to achieve the sentencing purposes of 18 U.S.C. § 3553(a)
(West 2005).
1
The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska.
Lopez-Flores agreed with the district court’s assessment of his criminal history
category under the Guidelines, but asked for a downward departure from that
category. (See Tr. at 5.) The district court was aware of its authority to depart from
the Guidelines. (Id. at 7-9, 17.) There being no unconstitutional motive for the lack
of departure alleged, the district court’s failure to depart is not reviewable. United
States v. Gonzalez-Lopez, 335 F.3d 793, 799 (8th Cir. 2003).
Lopez-Flores argues the district court impermissibly relied upon the Sentencing
Guidelines in violation of United States v. Booker, 125 S. Ct. 738 (2005). However,
the district court made clear it recognized the advisory nature of the Sentencing
Guidelines and considered the factors enumerated in 18 U.S.C. § 3553(a). (Tr. at 19.)
Accordingly, the district court committed no Booker error.
In light of the offense level, criminal history category, nature and
circumstances of the offense, history of Lopez-Flores, and the other factors
enumerated in § 3553(a) and United States v. Adams, 401 F.3d 886, 895 (8th Cir.
2005), this Court concludes the sentence imposed by the district court is in all aspects
reasonable.
We therefore affirm the district court.
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