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Mazariegos, also known as Pony, * [UNPUBLISHED]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 guiltyto conspiracyto distributemethamphetamine

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 and 1

reduced Velasquez's sentence to 84 months. Velasquez appeals the reduction,

The Honorable Richard G. Kopf, United States District Judge for the District 1

of Nebraska.
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 thatsome of the

information contained in the PSR was false, a defendant is not deprived of due

process when sentenced on the basis ofsuch information aslong asthe defendant was

afforded an adequate opportunity to challenge the information.”) (internal quotation

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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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