United States v. Aurelio Hernandez-Guinac

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Kermit E. Bye and Raymond W. Gruender (UNPUBLISHED); Granting [4294370-2] motion to withdraw as counsel filed by Mr. John P. Messina. [4335699] [15-2267]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-2267
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Aurelio Hernandez-Guinac
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Ft. Dodge
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Submitted: November 6, 2015
Filed: November 12, 2015
[Unpublished]
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Before WOLLMAN, BYE, and GRUENDER, Circuit Judges.
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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.

Appellate Case: 15-2267

Page: 1

Date Filed: 11/12/2015 Entry ID: 4335699

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.
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Appellate Case: 15-2267

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Date Filed: 11/12/2015 Entry ID: 4335699