United States v. Javier Hurtado-Amezquita

Filing

PER CURIAM OPINION FILED - THE COURT: Diana E. Murphy, Steven M. Colloton and Duane Benton (UNPUBLISHED); [4138226-2] Motion to withdraw as counsel filed by Ms. Latrece Gray is granted, subject to conditions. [4146851] [13-3164, 13-3165, 13-3166]

United States Court of Appeals
For the Eighth Circuit
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No. 13-3164
___________________________
United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Javier Hurtado-Amezquita,
lllllllllllllllllllll Defendant - Appellant.
___________________________
No. 13-3165
___________________________
United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Javier Hurtado-Amezquita, also known as Francisco Javier Hurtado-Amezquita,
lllllllllllllllllllll Defendant - Appellant.
___________________________
No. 13-3166
___________________________
United States of America,
lllllllllllllllllllll Plaintiff - Appellee,

Appellate Case: 13-3164

Page: 1

Date Filed: 04/24/2014 Entry ID: 4146851

v.
Javier Hurtado-Amezquita, also known as Francisco Javier Hurtado-Amezquita,
lllllllllllllllllllll Defendant - Appellant.
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: April 7, 2014
Filed: April 24, 2014
[Unpublished]
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Before MURPHY, COLLOTON, and BENTON Circuit Judges.
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PER CURIAM.
In these direct criminal appeals, Javier Hurtado-Amezquita challenges the
sentences the district court1 imposed after he pled guilty to an immigration offense
and admitted that he had violated the conditions of two terms of supervised release
as a result of the immigration offense. Hurtado-Amezquita’s counsel has moved to
withdraw and has filed a brief under Anders v. California, 386 U.S. 738 (1967),
arguing (1) that Hurtado-Amezquita’s double jeopardy rights were violated because
a prior drug-felony conviction was used to enhance his advisory Guidelines
imprisonment range for the immigration offense, and (2) that his sentences were
substantively unreasonable.
1

The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas, now retired.
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Appellate Case: 13-3164

Page: 2

Date Filed: 04/24/2014 Entry ID: 4146851

First, assuming that the double jeopardy argument was adequately preserved
in the district court, we conclude that it lacks merit. See United States v. Bates, 77
F.3d 1101, 1106 (8th Cir. 1996) (describing as “well-settled” principle that use of
defendant’s prior felony convictions to establish his status as convicted felon and to
enhance his sentence did not constitute second conviction or punishment for double
jeopardy purposes). Second, upon careful review, we conclude that the district court
did not impose any substantively unreasonable sentence. See United States v.
Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (review of sentence includes
considering substantive reasonableness of sentence under totality of circumstances;
where sentence falls within Guidelines range, appeals court may, but is not required
to, apply presumption of reasonableness); see also United States v. Miller, 557 F.3d
910, 915-16 (8th Cir. 2009) (appeals court reviews district court’s revocation
sentencing decisions using same standards applied to initial sentencing decisions).
Having independently reviewed the record under Penson v. Ohio, 488 U.S. 75
(1988), we find no nonfrivolous issues. Accordingly, we affirm the judgments of the
district court, and we grant counsel’s motion to withdraw, subject to counsel
informing Hurtado-Amezquita about procedures for seeking rehearing or filing a
petition for certiorari.
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Appellate Case: 13-3164

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Date Filed: 04/24/2014 Entry ID: 4146851