United States v. Aurelio Hernandez-Guinac, No. 15-2267 (8th Cir. 2015)

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Court Description: Per Curiam - Before Wollman, Bye and Gruender, Circuit Judges] Criminal case - Sentencing. Anders case. The district court did not abuse its discretion by granting the government's motion for an upward departure under Guidelines Sec. 4A1.3(a) based on under-represented criminal history. [ November 10, 2015

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United States Court of Appeals For the Eighth Circuit ___________________________ No. 15-2267 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Aurelio Hernandez-Guinac lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the Northern District of Iowa - Ft. Dodge ____________ Submitted: November 6, 2015 Filed: November 12, 2015 [Unpublished] ____________ Before WOLLMAN, BYE, and GRUENDER, Circuit Judges. ____________ PER CURIAM. Aurelio Hernandez-Guinac pled guilty to being found after illegal reentry, and at sentencing, the district court1 granted the government’s motion for an upward 1 The Honorable Mark W. Bennett, United States District Judge for the Northern District of Iowa. departure under U.S.S.G. § 4A1.3(a) based on an under-represented criminal history, noting that the sentence could be viewed alternatively as an upward variance based on a weighing of the 18 U.S.C. § 3553(a) sentencing factors. Hernandez appeals, and his counsel has moved to withdraw, arguing in a brief filed under Anders v. California, 386 U.S. 738 (1967), that the 21-month sentence is substantively unreasonable. After careful review, we conclude that the court did not abuse its discretion in granting an upward departure, see United States v. Vasquez, 552 F.3d 734, 738-39 (8th Cir. 2009) (discussing applicability of upward departures under § 4A1.3(a)), and the sentence is not substantively unreasonable, see United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (abuse-of-discretion review). Further, having independently reviewed the record pursuant to Penson v. Ohio, 488 U.S. 75 (1988), we find no nonfrivolous issues. The judgment is affirmed, and we grant counsel’s motion to withdraw. ______________________________ -2-

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