United States v. David Kre

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Lavenski R. Smith and Duane Benton [4254851-2] Granting motion to withdraw as counsel filed by Mr. John P. Messina., (UNPUBLISHED) [4303343] [15-1272]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1272
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
David Allen Kress
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Northern District of Iowa - Dubuque
____________
Submitted: August 3, 2015
Filed: August 6, 2015
[Unpublished]
____________
Before WOLLMAN, SMITH, and BENTON, Circuit Judges.
____________
PER CURIAM.
David Kress appeals after the district court1 denied him a sentence reduction
under 18 U.S.C. § 3582(c)(2). In 2005, Kress pleaded guilty to manufacturing and
1

The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.

Appellate Case: 15-1272

Page: 1

Date Filed: 08/06/2015 Entry ID: 4303343

attempting to manufacture more than 5 grams of methamphetamine. In a written,
nonbinding plea agreement, the parties stipulated that an upward departure under
U.S.S.G. § 4A1.3 was warranted, and that a 180-month sentence was appropriate.
The district court departed from the then-applicable range of 120-121 months, and
sentenced Kress to 180 months in prison. In December 2014, the district court sua
sponte considered and declined to reduce his sentence under Amendment 782
(effective November 1, 2014), finding that a reduction was not authorized, and in the
alternative, that even if authorized, a reduction was not warranted. On appeal, Kress
argues that the district court was authorized to reduce his sentence notwithstanding
the parties’ agreement and the upward departure, and erred by failing to do so.
We conclude there is no basis for reversal, as the district court’s alternative
finding--that a reduction was not warranted even if authorized--was not an abuse of
discretion. See United States v. Long, 757 F.3d 762, 763 (8th Cir. 2014) (de novo
review of whether § 3582(c)(2) authorizes modification, and abuse-of-discretion
review of decision whether to grant authorized § 3582(c)(2) modification). The
judgment is affirmed, and counsel’s motion to withdraw is granted.
______________________________

-2-

Appellate Case: 15-1272

Page: 2

Date Filed: 08/06/2015 Entry ID: 4303343