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The Honorable James M. Rosenbaum, Chief Judge, United States District

Court for the District of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-2459

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United States of America, * 

* 

Appellee, * 

* Appeal from the United States

v. * District Court for the 

* District of Minnesota.

Seth Tylibe Nururdin, * 

* [UNPUBLISHED]

Appellant. *

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Submitted: November 10, 2008

Filed: March 31, 2009 

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Before MELLOY, BOWMAN, and SMITH, Circuit Judges.

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PER CURIAM.

Seth Tylibe Nururdin pleaded guilty to possession with intent to distribute

approximately 48.9 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(B). At sentencing, Nururdin argued that his sentence should reflect the recently

proposed amendment to the crack cocaine guidelines. See U.S.S.G. App. C Supp.,

amend. 706 (Nov. 1, 2007). The district court1

 declined to consider the proposed

amendment and sentenced Nururdin to 151 months' imprisonment. Nururdin appealed,

arguing that, in light of the proposed amendment, his sentence was unreasonable. He
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asserted that application of the proposed amendment would result in a Guidelines

range of 130 to 162 months. During the pendency of Nururdin's appeal, the proposed

amendment became effective and retroactive. U.S.S.G. § 1B1.10(c). As a result, this

court remanded the case to the district court for resentencing. At resentencing, the

district court imposed a sentence of 130 months' imprisonment. Nururdin again

appeals, relying on his previously-filed appellate brief.

I. Discussion

In his previous brief, Nururdin attacked the overall reasonableness of the

sentence. He argued that the district court abused its discretion by failing to avoid

unwarranted sentencing disparities and by overstating his criminal history. We have

repeatedly held that a sentence falling within a properly calculated Guidelines range

is entitled to a presumption of reasonableness. See, e.g., United States v. Powills, 537

F.3d 947, 951 (8th Cir. 2008). Here, Nururdin does not assert that the district court

miscalculated the Guidelines range or failed to consider the § 3553(a) factors. In fact,

Nururdin's Guidelines calculation is in accord with the presentence investigation

report's calculation of a sentencing range between 130 and 162 months. Nururdin only

contends that the district court gave insufficient weight to a potential disparity

between his sentence and those of the actual coconspirators in the underlying drug

conspiracy. But Nururdin makes no convincing argument on this point, nor does he

cite to any controlling authority supporting reversal. Therefore, we hold that the

district court's sentence is reasonable. 

Nururdin also argues that the district court should have granted a downward

departure based on his overstated criminal history. But a district court's denial of a

downward departure is "unreviewable unless the district court had an unconstitutional

motive or erroneously thought that it was without authority to grant the departure."

United States v. Phelps, 536 F.3d 862, 868 (8th Cir. 2008). Because Nururdin did not

allege an unconstitutional motive or assert that the district court was unaware of its
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authority, we hold that the district court did not abuse its discretion in denying

Nururdin's request for a downward departure. 

II. Conclusion

Accordingly, we affirm.

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