United States v. Elodio-Benitez, No. 11-1695 (8th Cir. 2012)
Annotate this CaseAfter illegally reentering the United States for the seventh time, defendant was again charged with and pleaded guilty to illegal reentry in violation of 8 U.S.C. 1326(a) and (b)(2), and 6 U.S.C. 202 and 557. On appeal, defendant argued that his sentence was substantively unreasonable. The court held that the district court did not abuse its discretion in failing to grant a downward variance in light of United States v. Jimenez-Perez where the lack of fast-track program was not a basis for a departure under U.S.S.G. 5K3.1. Further, defendant did not argue at sentencing for a downward variance on this ground and the district court committed no plain error in failing to comment sua sponte on the issue.
Court Description: Criminal Case - sentence. District court did not abuse its discretion in failing to grant a greater downward variance. Resentencing in light of United States v. Jimenez-Perez is unwarranted because lack of a fast- track program is not a basis for departure and district court did not plainly err in failing to comment sua sponte of that issue.
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