United States v. Gerardo Reyna-Gonzalez
Opinion
Opinion
MEMORANDUM
Gerardo Reyna-Gonzalez appeals from the district court’s judgment and challenges the 57-month sentence and three-year term of supervised release imposed following his guilty-plea conviction for being a deported alien found unlawfully in the United States, in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.
The government contends that the appeal is untimely. We disagree. Reyna-Gonzalez filed his notice of appeal (“NOA”) as an attachment to a timely motion to extend time to file an appeal. Because the district court granted that motion and the NOA was filed within 30 days of the original deadline to file an appeal, this appeal is timely. See Fed. R.App. P. 4(b)(4).
Reyna-Gonzalez contends that the district court erred by failing to appreciate its discretion under Kimbrough v. United States, 552 U.S. 85 , 128 S.Ct. 558 , 169 L.Ed.2d 481 (2007), to deviate from the advisory sentencing Guidelines based on policy differences with the Guidelines. The district court did not err because the record reflects that the court was aware of its discretion to deviate and it explained why it chose not to do so.