United States v. Wade Allen Wheat

1 The Honorable Warren K. Urbom, United States District Judge for the District
of Nebraska.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-2774
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska
Patricio Murillo, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 7, 2001
Filed: December 26, 2001
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Before McMILLIAN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
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PER CURIAM.
Patricio Murillo appeals from the final judgment entered in the District Court1
for the District of Nebraska upon his guilty plea to re-entering the United States
illegally after deportation following his conviction for an aggravated felony, in
violation of 8 U.S.C. § 1326(a) and (b)(2). The district court sentenced appellant to
57 months imprisonment and 3 years supervised release. For reversal, appellant
argues that the district court mistakenly believed it lacked authority to grant him a

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downward departure on the basis of cultural assimilation. For the reasons discussed
below, we affirm the judgment of the district court.
We are satisfied from our review of the sentencing transcript that the district
court was aware of the case Murillo relied upon, United States v. Lipman, 133 F.3d
726 (9th Cir. 1998), and that it proceeded to assume, at least for the sake of argument,
that it possessed authority to depart on the basis of cultural assimilation. Its
discretionary decision not to depart is therefore unreviewable. See United States v.
Edwards, 225 F.3d 991, 992-93 (8th Cir. 2000), cert. denied, 531 U.S. 1100 (2001).
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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