United States v. Scott Donald Wiele

1The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1451
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Elizabeth S. Ortiz, *
* [UNPUBLISHED]
Appellant. *
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Submitted: October 18, 2007
Filed: October 26, 2007
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Before BYE, BOWMAN, and SMITH, Circuit Judges.
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PER CURIAM.
Elizabeth Ortiz appeals the sentence the district court 1 imposed after she pled
guilty–without the benefit of a plea agreement–to one count of possession with intent
to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B). Ortiz qualified for the "safety valve" under § 5C1.2 of the U.S. Sentencing
Guidelines due to the assistance she provided the police and her lack of criminal
history. However, she was assessed a two-level enhancement under § 3C1.1 of the
Guidelines for obstruction of justice because she absconded from supervision while

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on pretrial release for approximately five years. Ortiz's advisory Guidelines range for
her offense and criminal history was forty-six to fifty-seven months.
During her sentencing hearing, Ortiz requested a sentence below the advisory
Guidelines range. She argued the two-level enhancement for obstruction of justice
should not apply and the circumstances of her offense, personal history and
characteristics justified a variance. The district court declined to grant Ortiz a
variance and sentenced her to forty-six months, the bottom of the Guidelines range.
On appeal, Ortiz argues the district court erred when it concluded it was required to
consider the Guidelines as presumptively reasonable. She claims the meaning and
import of the other statutory considerations enumerated in 18 U.S.C. § 3553(a) were
undermined by the court's belief the Guidelines are presumptively reasonable.
We conclude the district court did not abuse its discretion in refusing to grant
Ortiz a variance from the advisory Guidelines. See United States v. Yahnke, 395 F.3d
823, 826 (8th Cir. 2005) (equating a sentence that is "reasonable" with a sentence that
is "not an abuse of discretion"); United States v. Thornberg, 326 F.3d 1023, 1026 &
n.4. (8th Cir. 2003) (indicating a district court's determination that a sentence is
reasonable is reviewed for abuse of discretion). The district court noted – not
improperly – the Guidelines range is presumptively reasonable. It then, as the law
requires, carefully considered the § 3553 (a) factors and decided a sentence of forty-
six months was appropriate. The law permits this court to "presume a sentence
imposed within a properly calculated United States Sentencing Guidelines range is a
reasonable sentence." United States v. Rita, 127 S.Ct. 2456, 2459 (2007); see also
United States v. Lincoln, 413 F.3d 716, 716 (8th Cir. 2005) (finding a sentence within
the guidelines range is presumptively reasonable). Nothing in the record suggests the
district court based its sentence on an improper or irrelevant factor or neglected to
consider a relevant factor. See United States v. Haack, 403 F.3d 997, 1004 (8th Cir.
2005).
We affirm the sentence.
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