United States v. German Ocampo-Murillo, No. 11-1889 (8th Cir. 2011)
Annotate this CaseCourt Description: Criminal case - Sentencing. Anders case. District court committed no procedural error and the sentence it imposed was not substantively unreasonable.
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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 11-1889 ___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Northern District of Iowa. German Ocampo-Murillo, also * known as German Murillo, also * [UNPUBLISHED] known as Francisco Torres-Figueroa, * also known as German Leonardo, * * Appellant. * ___________ Submitted: August 10, 2011 Filed: August 11, 2011 ___________ Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges. ___________ PER CURIAM. German Ocampo-Murillo pled guilty to reentering the United States unlawfully after having been deported following conviction for an aggravated felony, a violation of 8 U.S.C. § 1326(a) and (b). The district court1 sentenced him to 57 months imprisonment, the bottom of the undisputed advisory Guidelines range. On appeal, 1 The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa. his counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing that the sentence is unreasonable and that the district court abused its discretion in declining to recommend to the Bureau of Prisons (BOP) that Ocampo-Murillo participate in its 500-hour drug-treatment program. We conclude that the district court committed no procedural error at sentencing and did not impose a substantively unreasonable sentence. See Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). We further conclude that the district court did not abuse its discretion in declining to recommend the 500-hour drug-treatment program, especially given the lack of evidence of recent substance abuse by Ocampo-Murillo. See 18 U.S.C. § 3621(b) ( The [BOP] shall make available appropriate substance abuse treatment for each prisoner [it] determines has a treatable condition of substance addiction or abuse. ). Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75 (1988), we have found no nonfrivolous issue. Accordingly, we grant counsel s motion to withdraw, and we affirm the judgment of the district court. ______________________________ -2-
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