United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-2280
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Cresencio Trujillo-Duran, also known as Salbador Carrillo
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
____________
Submitted: February 10, 2014
Filed: March 11, 2014
[Unpublished]
____________
Before LOKEN, BOWMAN, and BYE, Circuit Judges.
____________
PER CURIAM.
Cresencio Trujillo-Duran pleaded guilty to being an illegal alien in possession
of a firearm, 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2), and the District Court1
1
The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas.
sentenced him to 60 months’ imprisonment, an upward variance from the advisory
U.S. Sentencing Guidelines range of 21 to 27 months’ imprisonment. Trujillo-Duran
appeals, arguing that the District Court abused its discretion by imposing a
substantively unreasonable sentence. We affirm.
We “review all sentences—whether inside, just outside, or significantly outside
the Guidelines range—under a deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 41 (2007). A district court has broad discretion to
consider the sentencing factors described in 18 U.S.C. § 3553(a), determine the
relative weight to be given each factor, and impose an appropriate sentence. United
States v. Richart, 662 F.3d 1037, 1054 (8th Cir. 2011), cert. denied, 132 S. Ct. 1942
(2012). The court abuses its discretion if it fails to consider a relevant sentencing
factor, gives significant weight to an improper or irrelevant factor, or commits a clear
error of judgment in weighing the relevant factors. See United States v. Feemster,
572 F.3d 455, 461 (8th Cir. 2009) (en banc).
In explaining its decision to vary upward and impose a 60-month sentence, the
District Court emphasized Trujillo-Duran’s involvement in an incident during which
multiple gunshots were fired from a moving vehicle in a populated area. This was the
incident underlying the instant firearm-possession offense and was therefore relevant
conduct for which Trujillo-Duran received no criminal history points. The court also
noted Trujillo-Duran’s participation in an attempted robbery, during which the female
victim was threatened with a taser in a movie-theater parking lot and eventually hid
beneath her vehicle to avoid her assailants. The court then engaged in a lengthy
colloquy with Trujillo-Duran, who repeatedly denied responsibility for these offenses
and claimed only to have been the victim of “bad luck.” Tr. of Change of Plea and
Sent. Hr’g at 20.
Trujillo-Duran contends that the court committed a clear error of judgment by
citing only the seriousness of his offense and the need for deterrence of future crimes
-2-
as justifications for the upward variance and by relying too heavily on his criminal
history—particularly because his prior crimes were already accounted for in the
calculation of his advisory Guidelines sentencing range.
First, § 3553(a) allows sentencing courts to vary upward based on
underrepresented criminal history, among other factors. See 18 U.S.C. § 3553(a)(1),
(a)(2)(A), (a)(2)(C). And we have previously held that a sentencing court may vary
from the Guidelines range based on a defendant’s criminal history, even if that history
was used in calculating the advisory Guidelines range. See Richart, 662 F.3d at 1052
(noting that an upward variance based on factors already considered in a Guidelines
calculation are permissible when the advisory Guidelines sentence does not fully
account for those factors or when the court applies broader § 3553(a) factors); United
States v. Barrett, 552 F.3d 724, 727 (8th Cir. 2009) (same). Second, the court’s
decision to assign significant weight to the nature and circumstances of Trujillo-
Duran’s prior offenses and the need to deter him from future criminal conduct was
well within the court’s broad sentencing discretion. See Richart, 662 F.3d at 1054.
In sum, the District Court did not abuse its discretion by considering these factors and
concluding that an upward variance from the advisory Guidelines range was
appropriate.
Giving “due deference to the district court’s decision that the § 3553(a) factors,
on a whole, justify the extent of the variance,” Gall, 552 U.S. at 51, we conclude that
Trujillo-Duran’s sentence is not unreasonable. Accordingly, we affirm the judgment
of the District Court.
______________________________
-3-