Terry Harrington v. City of Council Bluffs

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-3364
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Antonio Amilcar Velasquez, also *
known as Antonio Velasquez *
Mazariegos, also known as Pony, * [UNPUBLISHED]
*
Defendant - Appellant. *
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Submitted: April 16, 2012
Filed: April 25, 2012
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Before BYE, BEAM, and BENTON, Circuit Judges.
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PER CURIAM.
Antonio Velasquez pleaded guilty to conspiracy to distribute methamphetamine
and was sentenced to 121 months' imprisonment. After Velasquez cooperated with
law enforcement, the government filed a Rule 35(b) motion to reduce Velasquez's
sentence to 108 months. The district court granted the government's motion and1
reduced Velasquez's sentence to 84 months. Velasquez appeals the reduction,
The Honorable Richard G. Kopf, United States District Judge for the District1
of Nebraska.

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contending the court should have reduced his sentence to 60 months. We dismiss for
lack of jurisdiction.
Most typically, when a defendant appeals the extent of a Rule 35(b) sentence
reduction "he must establish that the sentence was imposed 'in violation of law' to
confer appellate jurisdiction[.]" United States v. Rublee, 655 F.3d 835, 838 (8th Cir.
2011) (quoting 18 U.S.C. § 3742(a)(1)). Velasquez contends the district court
imposed a sentence "in violation of law" when it considered an uncontested fact from
his presentence investigation report ("PSR") that Velasquez claims was unrelated to
the value of his assistance—a fact indicating Velasquez may have urged a potential
witness against him to misconstrue facts if questioned. We disagree.
First, it is debatable whether this fact was unrelated to Velasquez's assistance
since it bore upon his credibility and usefulness as a government informant. Second,
even assuming the incident was unrelated, as we explained in Rublee, a court may
consider factors unrelated to the defendant's substantial assistance when exercising
its discretion to limit a sentence reduction. 655 F.3d at 839 ("Because the court had
authority to limit the Rule 35(b) reduction . . . based on factors unrelated to the
substantial assistance [the defendant] provided, his sentence was not imposed 'in
violation of law' even if based on an unrelated factor."). Moreover, even if the district
court's refusal to depart further was based on consideration of this portion of
Velasquez's PSR—a portion to which Velasquez failed to timely object—such refusal
did not amount to an "unconstitutional motive" warranting our review. See United
States v. Sykes, 356 F.3d 863, 865 (8th Cir. 2004) ("Absent an unconstitutional
motive, the extent to which a district court exercises its discretionary authority to
depart downward [based on a Rule 35(b) motion] is not subject to review."); see also
West v. United States, 994 F.2d 510, 512 (8th Cir. 1993) ("Assuming that some of the
information contained in the PSR was false, a defendant is not deprived of due
process when sentenced on the basis of such information as long as the defendant was
afforded an adequate opportunity to challenge the information.”) (internal quotation
-2-

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marks and citation omitted). Accordingly, we lack jurisdiction to consider
Velasquez's contention the court abused its discretion by failing to further reduce his
sentence.
We dismiss the appeal for lack of jurisdiction.
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