United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1252
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United States of America, *
*
Plaintiff - Appellee, *
*
v. * Appeal from the United States
* District Court for the
Cesar Frausto-Carlos, also known as * District of Minnesota.
Mark Anthony Leal, also known as *
Cesar Frausto Carlos, also known as *
Cesar Eduardo Frausto-Carlos, * [UNPUBLISHED]
*
Defendant - Appellant. *
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Submitted: October 18, 2010
Filed: October 21, 2010
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Before MURPHY, BEAM, and BENTON, Circuit Judges.
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PER CURIAM.
Cesar Frausto-Carlos pled guilty to a charge of reentering the United States
illegally after removal, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). The district
court1 sentenced him to 60 months imprisonment which represented a 17 month
downward variance from his advisory guideline range. Frausto-Carlos appeals,
1
The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
arguing that his sentence was substantively unreasonable and failed to account
adequately for his personal history and characteristics. We affirm.
Frausto-Carlos, a native and citizen of Mexico, was convicted in state court of
third degree assault in 2006 for striking his girlfriend on the head with a hammer. He
admits that that offense was an aggravated felony. After serving a prison sentence he
was deported to Mexico on January 30, 2008. He later reentered the United States
without permission and was apprehended in Minnesota on August 19 of the same
year. He was indicted for illegal reentry after removal, entered into a plea agreement
with the government, and pled guilty.
At the sentencing hearing the district court adopted the guideline calculations
in the presentence investigation report with an offense level of 21 and criminal history
category VI, yielding an advisory sentencing range of 77 to 96 months. Frausto-
Carlos sought a downward variance to 36 months imprisonment, raising mitigating
factors such as his troubled and impoverished childhood, his devotion to his family,
and his addiction to methamphetamine. He contended that his addiction had caused
him to commit the state assault offense as well as two fifth degree felony convictions
for drug possession.
In considering appellant's personal history and characteristics, the district court
was troubled by his criminal history:
[Y]ou've come here illegally twice. I'm sure it was made clear to
you at the time of your previous deportation that you couldn't be here.
Using the false name that you did for a number of years is strong
evidence of the fact that you knew you shouldn't be in this country and
while here you amassed a serious criminal history, including some quite
serious offenses. . . . I'm particularly bothered by some of the underlying
conduct.
Though I do understand . . . that you're a meth[amphetamine]
addict . . . . [I]t's not a surprise or revelation to me that you've picked up
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quite a criminal record while you've been in the United States and
addicted to methamphetamine. I do wish [that] there were a system to
get you a better form of treatment.
Concluding that a downward variance from the 77 to 96 month advisory range was
warranted, the district court imposed 60 months imprisonment.
We review the sentence imposed by the district court under a deferential abuse
of discretion standard. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009)
(en banc). We first look at whether the district court committed a significant
procedural error, such as "'failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the [18
U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence.'" Id. (quoting Gall v. United States,
128 S. Ct. 586, 597–98 (2007)). In the absence of significant procedural error, we
must then consider whether the district court abused its discretion by imposing a
substantively unreasonable sentence. Id.
Frausto-Carlos does not complain of procedural error, but he contends that the
district court imposed a substantively unreasonable sentence that is "greater than
necessary," see § 3553(a), because it fails adequately to account for his personal
history and characteristics. Nevertheless, the court expressly considered the allegedly
mitigating circumstances pressed by Frausto-Carlos before balancing them against its
concerns about his "serious criminal history." The court then settled on a 17 month
downward variance. "In these circumstances, it is nearly inconceivable that the court
abused its discretion in not varying downward still further." United States v. Lazarski,
560 F.3d 731, 733 (8th Cir. 2009) (affirming 12 month downward variance); see also
United States v. Moore, 581 F.3d 681, 684 (8th Cir. 2009) (same); United States v.
Curry, 536 F.3d 571 (6th Cir. 2008) (affirming 84 month downward variance on
similar grounds). Under all the circumstances we conclude that the district court did
not abuse its discretion.
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Accordingly, the judgment of the district court is affirmed.
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