United States v. Santos Portillo

1The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3943
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Michael James Almquist, *
* [UNPUBLISHED]
Appellant. *
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Submitted: August 6, 2004
Filed: August 13, 2004
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Before WOLLMAN, McMILLIAN, and RILEY, Circuit Judges.
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PER CURIAM.
Michael James Almquist (Almquist) pled guilty to misuse by a representative
payee of benefits under Title II of the Social Security Act, in violation of 42 U.S.C.
§ 408(a)(5). The district court 1 declined to depart downward from the Sentencing
Guidelines, and sentenced Almquist to three years supervised probation with six
months home confinement. For reversal, Almquist argues the district court
incorrectly concluded it had no authority to depart downward.

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-2-
After carefully reviewing the record, and in particular the remarks made by the
district court during the sentencing hearing, we conclude the court was fully aware
of its authority to depart downward in a case falling outside the heartland of
sentencing cases, and simply declined to do so given the facts in this case. See
United States v. VanHouten, 307 F.3d 693, 696-97 (8th Cir. 2002); United States v.
Bieri, 21 F.3d 811, 817-18 (8th Cir. 1994). Thus, we conclude the district court made
a discretionary decision not to depart downward, which is unreviewable. See United
States v. Rhone, 311 F.3d 893, 894 (8th Cir. 2002), cert. denied, 538 U.S. 1051
(2003).
Accordingly, we affirm. We deny as moot Almquist’s motion for stay of
sentence.
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