United States v. Efrain Ayon-Lopez

Filing

PER CURIAM OPINION FILED - THE COURT: ROGER L. WOLLMAN, STEVEN M. COLLOTON and RAYMOND W. GRUENDER (UNPUBLISHED) [3670286] [09-2461]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 09-2461
___________
United States of America,
Appellee,
v.
Efrain Ayon-Lopez,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* Northern District of Iowa.
*
* [UNPUBLISHED]
*
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Submitted: May 26, 2010
Filed: June 2, 2010
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Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Efrain Ayon-Lopez pleaded guilty to possessing with intent to distribute and
aiding and abetting another or others to distribute methamphetamine, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(A), and 18 U.S.C. § 2; and conspiring to distribute and
possess with intent to distribute methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(A), and 21 U.S.C. § 846. The district court,1 after calculating an
advisory Guidelines imprisonment range of 262-327 months, granted Ayon-Lopez’s
motion for a downward variance and sentenced him to 230 months in prison and 5
1

The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.

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years of supervised release. On appeal, Ayon-Lopez suggests that he should have also
received a downward departure based on substantial assistance, that he should not
have received a Guidelines enhancement for being a manager or supervisor, and that
his counsel was ineffective.
We first note that the district court lacked authority to depart downward based
on substantial assistance, because the government did not file a substantial-assistance
motion and nothing in the record suggests that the government acted improperly. See
United States v. Davis, 397 F.3d 672, 676 (8th Cir. 2005) (per curiam) (absent motion
by government, district court generally lacks authority to grant downward departure
based on defendant’s substantial assistance; if government expressly reserves
discretion through plea agreement, this court will perform only limited review of
decision not to file motion for downward departure for substantial assistance;
exception to otherwise broad discretion of government to file motion for substantial
assistance is triggered when government’s refusal was irrational, in bad faith, or based
on unconstitutional motive). Second, we conclude that Ayon-Lopez cannot challenge
the Guidelines enhancement for being a manager or supervisor, because he withdrew
that objection below. See United States v. Thompson, 289 F.3d 524, 526-27 (8th Cir.
2002) (where defendant withdrew objections in district court, including objection to
Guidelines enhancement for being manager or supervisor, he was precluded from
raising those objections on appeal). Third, we decline to consider Ayon-Lopez’s
ineffective-assistance arguments on direct appeal. See United States v. Cain, 134 F.3d
1345, 1352 (8th Cir. 1998) (ineffective-assistance-of-counsel claim should be raised
in motion under 28 U.S.C. § 2255).
We also conclude that the district court did not impose an unreasonable
sentence. See United States v. Feemster, 572 F.3d 455, 461, 464 (8th Cir. 2009) (en
banc) (standards for reviewing sentence). The court did not commit any procedural
error, see 18 U.S.C. § 3553(a)(1), (2)(A)-(D); United States v. Gonzalez, 573 F.3d
600, 607 (8th Cir. 2009) (court need not engage in mechanical recitation of § 3553(a)
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factors, and need only set forth enough to satisfy appellate court that it considered
parties’ arguments and had reasoned basis for exercising its own legal decisionmaking authority), and there is no indication that the court failed to consider a relevant
factor, gave significant weight to an improper or irrelevant factor, or committed a
clear error in weighing the factors, see United States v. Saddler, 538 F.3d 879, 890
(8th Cir.) (describing circumstances where district court abuses its discretion and
imposes unreasonable sentence), cert. denied, 129 S. Ct. 770 (2008).
We have independently reviewed the record and have found no nonfrivolous
issue for appeal. Accordingly, the judgment of the district court is affirmed.
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