UNITED STATES of America, Plaintiff-Appellee, v. Tracy BRUNKEN, Defendant-Appellant.
Nos. 08-2488, 08-2783
United States Court of Appeals, Eighth Circuit
Oct. 5, 2009
Submitted: Feb. 10, 2009. Filed: Oct. 5, 2009.
- A [Patel]: They were—it was effecting [sic] their business because I was doing business in their area that was the leveraging of the shops and all that, and they were threatening me that I should leave the city of Ahmedabad. So they were telling me—they were threatening me to leave that city because it was effecting [sic] their business....
- Q [Attorney for the Department of Homeland Security]: So these incidents didn‘t happen to you because of your political beliefs, did they—did it? A: [Patel] No, the incidents that happened with those two people were because of the business reasons....
- Q [IJ]: Well do you know why these people attacked you? A: [Patel] It was because of the business, because my business was doing very well over there, and their business was not doing, was not doing so well.
- Q [IJ]: Well why did these two people threaten and beat you? A [Patel]: It was, it was because of the business reasons. They said my business is doing well and theirs is not doing well.
Furthermore, while Patel‘s application alleged that politics motivated the attacks, Patel admitted during the hearing that he had limited involvement in politics after 2002. His involvement was so limited, in fact, that Patel did not know that his political party had won the national elections in 2004.
Patel also failed to offer any evidence that would support a finding of a likelihood of future persecution. He claimed at the hearing that his father warned him to remain in the United States because the attackers were still looking for him, but Patel admitted that any future attacks would occur “because of the business.”
The Board‘s decision was well supported in all respects, and we thus deny Patel‘s petition for review from its decision not to grant withholding of removal.
Patel has also included in his petition to this court a claim that he qualifies for relief under the Convention Against Torture. Like his asylum claim, however, he never requested this relief from either the IJ or the BIA. He has therefore waived it.
Finally, Patel argues that this court should remand this case for a new hearing because Patel received ineffective assistance of counsel. While we doubt the merit of this argument, we lack jurisdiction to consider it. Patel raised this issue before the BIA for the first time in a motion to reopen. He filed that motion after petitioning this court for review of his final order of removal. The BIA denied it on December 24, 2008, and Patel has not filed a petition for review of that decision. Without a separate petition, we lack jurisdiction to review this argument. See Youkhana v. Gonzales, 460 F.3d 927, 933-34 (7th Cir. 2006).
* * *
We DISMISS the petition for review in part and DENY the remainder of the petition.
UNITED STATES of America, Plaintiff-Appellee, v. Tracy BRUNKEN, Defendant-Appellant.
Matthew R. Metzgar, Sioux City, IA, for appellant Brunken.
Robert Tiefenthaler, Sioux City, IA, for appellant Whitlock.
John H. Lammens, AUSA, Sioux City, IA, for appellee.
Before LOKEN, Chief Judge, MELLOY and BENTON, Circuit Judges.
LOKEN, Chief Judge.
Tracy Brunken and Amy Whitlock were indicted for conspiring to distribute at least five hundred grams of methamphetamine mixture and fifty grams of pure methamphetamine and distribution of a detectable amount of methamphetamine in violation of
I. Whitlock
Whitlock requested a fifty percent reduction from her mandatory minimum sentence. At sentencing, which took place after the Supreme Court‘s decision in Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007), the district court found that Whitlock‘s assistance was not extraordinary, asserted that it was therefore “constrained by Eighth Circuit precedent not to go to 50 percent,” and commented:
when somebody does everything that they could do and they are relatively truthful and complete, and reliable, and they are timely, I‘d like to be able to give 50 percent, because that‘s actually the national average.... But I have made that argument before, it‘s been rejected by the United States Court of Appeals.... I hope you get my decision overturned on appeal ... and I have an opportunity to give a greater reduction in this case.
On appeal, Whitlock does not challenge the district court‘s conclusion that her assistance was not extraordinary. Rather, she argues that Gall invalidated our extraordinary circumstances standard. The court en banc recently held (i) that departures under
In Gall the Supreme Court held that “courts of appeals must review all sentences—whether inside, just outside, or significantly outside the Guidelines range—under a deferential abuse-of-discretion standard.” 128 S. Ct. at 591. The Court held that requiring “proportional” justifications for variances from the advisory guideline range was inconsistent with United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). But the Court confirmed “that a major departure should be supported by a more significant justification than a minor one.” 128 S. Ct. at 597, quoted in Burns, at 895 n. 5. That principle was properly applied in this case—the district court carefully weighed the quality and quantity of Whitlock‘s assistance and concluded that a substantial reduction was warranted, a reduction much greater than the government‘s assessment of Whitlock‘s assistance caused it to recommend, but somewhat less than Whitlock requested. According the district court‘s determination the deference required by Gall and Burns, we conclude that the court did not abuse its substantial discretion. Whitlock‘s sentence is not substantively unreasonable. It is therefore affirmed.
II. Brunken
The district court determined that Brunken‘s advisory guidelines range is 188 to 235 months in prison and granted a 36-month downward variance. On appeal, Brunken argues the court committed procedural error under Gall by failing to adequately consider the sentences imposed on his co-defendants, as
In this case, Brunken asserts that his co-defendants were higher in the conspiracy‘s chain of command yet received lighter or comparable sentences. The district court expressly considered this issue and concluded that Brunken was not similarly situated to his co-defendants because they pleaded guilty, received substantial assistance reductions, or had lower criminal history scores. For these reasons, the court did not grant a variance on that basis. As the court considered this
The judgments of the district court are affirmed.
MELLOY, Circuit Judge, concurring in part, and dissenting in part.
I am pleased to concur in section II dealing with the sentence imposed upon Tracy Brunken. However, I respectfully dissent as to section I.
Our court recently decided United States v. Bates, No. 08-3414, 2009 WL 2707559 (8th Cir. Aug. 31, 2009) (unpublished). The sentencing judge was the same in both Bates and this case. In Bates, our court remanded for resentenc
I don‘t believe the substantial assistance in this case was extraordinary, and that‘s why I didn‘t give a 50 percent reduction. However, if the United States Court of Appeals for the Eighth Circuit believes that [Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007),] alters the requirement that in order to have a 50 percent reduction it has to be extraordinary, based on the defendant‘s substantial assistance and my evaluation of the 5K1.1 factors, I would give a 50 percent reduction in this case if I wasn‘t required to follow existing Eighth Circuit law.
Id. at * 1.
In the present Whitlock case the district judge made similar comments when he stated at sentencing: “I feel constrained by Eighth Circuit precedent not to go to 50 percent.... My understanding of Eighth Circuit law is that substantial assistance has to be extraordinary.” The district court then went on to explain that he did not feel the assistance in the Whitlock case rose to the level of extraordinary. He stated that he hoped the Gall case2 would change the requirement that the assistance be extraordinary in order to allow for a 50 percent reduction. He concluded by stating: “I hope you get my decision overturned on appeal and it comes back for resentencing, and I have an opportunity to give a greater reduction in this case.”
While the comments made by the same sentencing judge in Bates and this case are not identical, I feel that they are so substantially similar that this case is indistinguishable from Bates. Accordingly, I feel we should follow the precedent established by the Bates court and remand Whitlock for resentencing.
James Dean VAN WYHE, Appellee, v. Tim REISCH; Douglas Weber; Jennifer Wagner, Appellants.
Charles E. Sisney, Appellee, v. Tim Reisch, in both his individual and official capacities as Secretary of Corrections for South Dakota; Douglas L. Weber, in both his individual and official capacities as Chief Warden for the Department of Corrections of South Dakota; Dennis Block, in both his individual and official capacities as Associate Warden for the South Dakota State Penitentiary; Jennifer Wagner, in both her individual and official capacities as Cultural Activities Coordinator for the South Dakota State Penitentiary, also known as Jennifer Lane; Daryl Slykhuis, Interim Warden of the South Dakota State Penitentiary, in his individual and official capacity, Appellants.