United States v. Craig J. Kiertzner, 460 F.3d 988 (8th Cir. 2006). · Go Syfert
United States v. Craig J. Kiertzner, 460 F.3d 988 (8th Cir. 2006). Cases Citing This Book View Copy Cite
“post- booker, . . . it is necessary for sentencing courts to calculate the applicable, advisory guidelines range, including any traditional departures or reductions, and use that range as one of the factors under 3553(a) to determine an overall, reasonable sentence.”
3 citation events across 1 distinct court.
Top citers, strongest first. 3 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) United States v. Russell Hodge
8th Cir. · 2006 · quote attribution · 1 verbatim quote · confidence high
post- booker, . . . it is necessary for sentencing courts to calculate the applicable, advisory guidelines range, including any traditional departures or reductions, and use that range as one of the factors under 3553(a) to determine an overall, reasonable sentence.
discussed Cited as authority (rule) United States v. Epifanio Reyes-Nunez
8th Cir. · 2008 · confidence medium
See United States v. Johnson, 517 F.3d 1020, 1023 (8th Cir.2008) (decision not to grant downward departure generally not renewable unless district court had unconstitutional motive or erroneously thought it was without authority to grant departure); United States v. Ki-ertzner, 460 F.3d 988, 989 (8th Cir.2006) (per curiam) (discretionary refusal to grant downward departure remains unreviewable after United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), as long as district court recognized its authority to depart).
discussed Cited as authority (rule) United States of America, Appellee/cross-Appellant v. Russell James Hodge, Also Known as Rusty Hodge, Appellant/cross-Appellee
8th Cir. · 2006 · confidence medium
See United States v. McDonald, 461 F.3d 948, 952 (8th Cir.2006) (“The guidelines sentencing range remains the ‘critical starting point’ of our analysis.”); United States v. Kiertzner, 460 F.3d 988, 989 (8th Cir.2006) (“[PJost-Boo/cer, ... it is necessary for sentencing courts to calculate the applicable, advisory Guidelines range, including any traditional departures or reductions, and use that range as one of the factors under § 3553(a) to determine an overall, reasonable sentence.”); United States v. Whitrock, 454 F.3d 866, 868 (8th Cir.2006) (“[A] departure under Chapter 5, P…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff—Appellee,
v.
Craig J. KIERTZNER, Defendant—Appellant
05-1961.
Court of Appeals for the Eighth Circuit.
Aug 21, 2006.
460 F.3d 988
Karen M. Shanahan, Assistant Federal Public Defender, Omaha, Nebraska, for appellant., Michael D. Wellman, Assistant U.S. Attorney, Omaha, Nebraska (Michael G. Heavican, on the brief), for appellee.
Melloy, Colloton, Benton.
Cited by 3 opinions  |  Published
PER CURIAM.

Craig Kiertzner pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The facts underlying his plea involved his receipt, possession, and offer for sale of eleven firearms allegedly owned by his father. The plea agreement included a recommendation for an offense-level adjustment based on acceptance of responsibility and a recommendation for sentencing at the low end of the Guidelines range. Kiertzner entered his plea on November 1, 2004. Prior to sentencing, the Supreme Court issued its decision in United States v. [*989] Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

At sentencing, Kiertzner alleged that his possession of the firearms did not involve the type of harm or risk of harm envisioned by Congress when Congress prohibited felons from possessing firearms. Rather, he alleged that he merely possessed the firearms temporarily in order to dispose of them, by sale, for his aged and infirm father. Based on this argument, he made specific requests for traditional departures under U.S.S.G. §§ 5K2.0 (outside the heartland) and 5K2.11 (lesser harms). He also requested, based on the logic of his arguments for these traditional departures and all of the factors under 18 U.S.C. § 3553(a), that the district court [1] exercise its discretion under Booker to sentence below the Guidelines range.

The district court recognized its authority under Booker and treated the Guidelines as advisory. It considered and rejected the defendant’s specific requests for traditional departures, granted a two level downward adjustment based on acceptance of responsibility, and sentenced Kiertzner at the bottom of the applicable Guidelines range, forty-one months. We now know, post -Booker, that it is necessary for sentencing courts to calculate the applicable, advisory Guidelines range, including any traditional departures or reductions, and use that range as one of the factors under § 3553(a) to determine an overall, reasonable sentence. United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir.2005). We continue to hold, post- Booker, that a sentencing court’s discretionary refusal to grant a traditional departure is unreviewable as long as the court recognized its authority to depart. United States v. Morell, 429 F.3d 1161, 1164 (8th Cir.2005). Here, because the district court properly understood its authority under U.S.S.G. §§ 5K2.0 and 5K2.11, its decision not to grant a traditional departure is unreviewable. Regarding the overall reasonableness of the sentence, a sentence within the Guidelines range is presumptively reasonable in our circuit. United States v. Marcussen, 403 F.3d 982, 985 n. 4 (8th Cir.2005). In the application of § 3553(a) to the present case, we find nothing that justifies deviation from this general rule. The sentence imposed is reasonable.

The judgment of the district court is affirmed.

1

. The Honorable Laurie Smith Camp, United States District Judge for the District of Nebraska.