Richard P. Landers v. Natl. RR Passenger

1 The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1683
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Gregory Mark Nairn, *
* [UNPUBLISHED]
Appellant. *
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Submitted: September 19, 2003
Filed: September 26, 2003
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Before RILEY, HANSEN, and SMITH, Circuit Judges.
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PER CURIAM.
Gregory Mark Nairn (Nairn) appeals the sentence the district court 1 imposed
after he pled guilty to conspiring to manufacture and distribute 50 grams or more of
methamphetamine (actual), in violation of 21 U.S.C. §§ 841 & 846 (2000) (Count 1);
possessing firearms in furtherance of a drug-trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A) (Count 2); and being a drug user in possession of firearms, in
violation of 18 U.S.C. § 922(g)(3) (Count 3). The court sentenced him to concurrent
prison terms of 120 months (the statutory minimum) on Count 1 and 24 months on

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Count 3, and a mandatory consecutive 60-month term on Count 2, plus 5 years
supervised release.
On appeal, for the first time, Nairn argues the district court erred in not
applying a mitigating-role reduction, given his lesser role in the conspiracy offense
and the government’s failure to offer a departure motion despite his cooperation.
After careful review of the record, we conclude the district court did not plainly err
in sentencing Nairn: the court was without authority to sentence him below the
statutory minimum absent a motion by the government, the government was under no
obligation to file a substantial-assistance departure motion, and Nairn made no
showing the government’s decision not to file a departure motion was motivated by
anything other than its belief he had not been truthful. See 18 U.S.C. § 3553(e);
United States v. Wolf, 270 F.3d 1188, 1189-92 (8th Cir. 2001); United States v.
Montanye, 996 F.2d 190, 192 (8th Cir. 1993) (en banc) (standard of review).
Accordingly, we affirm.
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