United States v. Kyla Forbes, No. 14-1022 (8th Cir. 2014)
Annotate this CaseCourt Description: Criminal Case - sentence. District court did not err in assessing criminal history point for a deferred judgment that was later expunged, as argument is foreclosed by this court's precedent; district court's refusal to grant downward departure is not reviewable; and district court was not required to vary downward based on a particular policy disagreement. Review is based on substantive reasonableness and sentence was not substantively unreasonable. [ June 25, 2014
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United States Court of Appeals For the Eighth Circuit ___________________________ No. 14-1022 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Kyla Nicole Forbes lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the Southern District of Iowa - Des Moines ____________ Submitted: June 9, 2014 Filed: June 26, 2014 [Unpublished] ____________ Before LOKEN, BEAM, and GRUENDER, Circuit Judges. ____________ PER CURIAM. Kyla Nicole Forbes pleaded guilty to conspiring to distribute methamphetamine and to launder money in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846 and 18 U.S.C. § 1956(h). She appeals her 75-month prison sentence, arguing the district court1 committed three sentencing errors. We affirm. First, Forbes argues the district court erred in assessing one criminal history point for a 2005 Iowa state court conviction for theft in the third degree because the state court imposed a deferred judgment that was later expunged when she successfully discharged the term of probation. See Iowa Code § 907.3(1). However, we expressly rejected this same argument in United States v. Townsend, 408 F.3d 1020, 1023-25 (8th Cir. 2005). Forbes urges us to reconsider and overrule Townsend, but as a panel we may not do so. Second, Forbes argues the district court erred in failing to grant a downward departure because Forbes s criminal history category under the advisory Guidelines substantially over-represents the seriousness of [her] criminal history. U.S.S.G. § 4A1.3(b)(1). At sentencing, the district court stated: certainly I m aware I can depart based upon that ground . . . . In this particular case, I decline to depart. Absent a showing of unconstitutional motive, a district court s refusal to grant a downward departure is not reviewable on appeal when the sentencing transcript shows that the court was aware of its authority to depart. United States v. Heath, 624 F.3d 884, 888 (8th Cir. 2010), cert. denied, 131 S. Ct. 2164 (2011). Third, Forbes argues the district court erred in failing to grant a downward variance from an advisory guidelines sentencing range based upon methamphetamine guidelines that were the result of congressional mandates, rather than Sentencing Commission empirical data, and are excessive. We have repeatedly held that, while a district court may vary categorically from a particular guideline based on a policy disagreement, it is not required to do so, and our appellate role is limited to 1 The Honorable Stephanie M. Rose, United States District Judge for the Southern District of Iowa. -2- determining the substantive reasonableness of a specific sentence. United States v. Talamantes, 620 F.3d 901, 902 (8th Cir. 2010) (quotation omitted). The sentence imposed on Forbes was not substantively unreasonable. The judgment of the district court is affirmed. ______________________________ -3-
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