UNITED STATES v. HERNANDEZ (2018)

[Unpublished]

Gregorio Hernandez directly appeals the Guidelines-range sentence the district court ¹ imposed after he pled guilty to being a felon in possession of a firearm. His counsel has moved for leave to withdraw and has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that the sentence is substantively unreasonable, as the Guidelines range overrepresented Hernandez’s criminal history, and the court should have given greater weight to his alcohol abuse. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

This court concludes that the district court did not impose a substantively unreasonable sentence. Counsel concedes that the Guidelines range was properly calculated; and the record reflects that the district court carefully considered and discussed relevant 18 U.S.C. § 3553(a) factors, and imposed a sentence within the Guidelines range. See United States v. Feemster, 572 F.3d 455, 461-62, 464 (8th Cir. 2009) (en banc) (appellate court first ensures no significant procedural error occurred, then considers substantive reasonableness of sentence under deferential abuse-of-discretion standard; on review, court may apply presumption of reasonableness to Guidelines-range sentence); United States v. Stults, 575 F.3d 834, 849 (8th Cir. 2009) (where court makes individualized assessment based on facts presented, addressing defendant’s proffered information in consideration of § 3553(a) factors, sentence is not unreasonable); United States v. Gonzalez, 573 F.3d 600, 608 (8th Cir. 2009) (upholding denial of downward variance where court considered sentencing factors and properly explained rationale). The court has independently reviewed the record under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and finds no nonfrivolous issues for appeal.

The judgment is affirmed, and counsel’s motion to withdraw is granted.

FOOTNOTES

1.   The Honorable Beth Phillips, United States District Judge for the Western District of Missouri.

PER CURIAM.