UNITED STATES v. FRANCISCO (2020)

[Unpublished]

In these consolidated appeals, Moses Francisco appeals the above-Guidelines sentence imposed by the district court ¹ after he pleaded guilty to immigration and firearm offenses--instituted by separate indictments--and his supervised release for a prior offense was revoked. 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 unreasonable.

Upon careful review, we conclude that the district court did not abuse its discretion by departing upward from the Guidelines, and did not impose a substantively unreasonable sentence, as the court properly considered the factors listed in 18 U.S.C. § 3553, and did not err in weighing the relevant factors. See United States v. Vasquez, 552 F.3d 734, 738 (8th Cir. 2009) (departures from sentencing Guidelines are reviewed for abuse of discretion; in determining whether to depart upward, court should consider nature and extent of criminal history); United States v. Feemster, 572 F.3d 455, 461-62 (8th Cir. 2009) (sentences are reviewed for substantive reasonableness under deferential abuse of discretion standard; abuse of discretion occurs when court fails to consider relevant factor, gives significant weight to improper or irrelevant factor, or commits clear error of judgment in weighing appropriate factors; this court must give due deference to district court's determination that § 3553(a) factors justify upward variance).

We have also independently reviewed the record under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and we find no non-frivolous issues for appeal. Accordingly, we affirm, and we grant counsel's motions to withdraw.

FOOTNOTES

1.   The Honorable Leonard T. Strand, Chief Judge, United States District Court for the Northern District of Iowa.

PER CURIAM.