United States v. Howard Eugene Liner

1The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-4016
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska
Alejandro Rivera, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: November 30, 2005
Filed: January 3, 2006
___________
Before BYE, McMILLIAN, and RILEY, Circuit Judges.
___________
PER CURIAM.
Alejandro Rivera appeals from the final judgment entered in the District Court1
for the District of Nebraska upon his guilty plea to distributing and possessing with
intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1),
and to a forfeiture count under 21 U.S.C. § 853. The district court sentenced Rivera
to 70 months imprisonment and 5 years supervised release. For reversal Rivera now
argues (though he did not so object below) that the district court erred in viewing the
Sentencing Guidelines as mandatory, which resulted in an unreasonable sentence

-- 1 of 2 --

-2-
under United States v. Booker, 125 S. Ct. 738 (2005). For the following reasons, we
affirm the judgment of the district court.
While the district court plainly erred in sentencing Rivera under mandatory
Guidelines, we conclude that the error was not prejudicial because the record does not
establish a reasonable probability that Rivera would have received a more favorable
sentence under an advisory Guidelines scheme. See United States v. Pirani, 406 F.3d
543, 550-53 (8th Cir.) (en banc), cert. denied, 126 S. Ct. 266 (2005). We also
conclude that the sentence is not unreasonable. See United States v. Booker, 125 S.
Ct. at 765-66 (appellate courts now review sentences for unreasonableness; 18 U.S.C.
§ 3553(a) sets forth factors that guide sentencing and in turn will guide appellate
courts in determining whether sentence is reasonable).
Accordingly, we affirm.
______________________________

-- 2 of 2 --