United States v. Marvin Rivera Fuentes

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Morris S. Arnold and Diana E. Murphy (UNPUBLISHED) [4431802] [16-1386]

United States Court of Appeals
For the Eighth Circuit
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No. 16-1386
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Marvin Donal Rivera Fuentes, also known as Marvin Donald Rivera Fuentes
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: July 26, 2016
Filed: July 29, 2016
[Unpublished]
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Before WOLLMAN, ARNOLD, and MURPHY, Circuit Judges.
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PER CURIAM.
Marvin Donal Rivera Fuentes, a citizen of Honduras, pleaded guilty to a charge
of illegally reentering the United States, in violation of 8 U.S.C. § 1326(a), (b)(1), and

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the district court1 sentenced him to 24 months in prison--representing a three-month
upward variance from the top of the calculated advisory Guidelines range--to be
followed by three years of supervised release. Rivera Fuentes’s counsel moves for
leave to withdraw, and in a brief filed under Anders v. California, 386 U.S. 738
(1967), he challenges the reasonableness of the prison sentence.
Having reviewed the record, we conclude that the district court did not abuse
its discretion in imposing the 24-month sentence. See United States v. Allison, 814
F.3d 952, 953 (8th Cir. 2016) (standard of review). During the course of the
sentencing hearing, the district court heard, and commented on, Rivera Fuentes’s
arguments for sentencing leniency. Ultimately however, the court was persuaded, and
explained in detail that a three-month upward variance was appropriate because of
Rivera Fuentes’s history of drinking alcohol, driving while intoxicated, and driving
while barred from doing so, which had resulted in multiple convictions, including one
for involuntary manslaughter. See 18 U.S.C. § 3553(a) (court, in determining
particular sentence to be imposed, shall consider, inter alia, history and characteristics
of defendant, and need to protect public from further crimes of defendant); United
States v. Mangum, 625 F.3d 466, 470 (8th Cir. 2010) (upward variance is reasonable
where court makes individualized assessment of § 3553(a) factors based on facts
presented, and considers defendant’s proffered information).
We also conclude, upon review of the record as required by Penson v. Ohio,
488 U.S. 75 (1988), that there are no non-frivolous issues for appeal.
The judgment is affirmed, and counsel is granted leave to withdraw.
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1

The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.
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Date Filed: 07/29/2016 Entry ID: 4431802