United States Court of Appeals
For the Eighth Circuit
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No. 13-3781
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Daniel Gonzales
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
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Submitted: May 23, 2014
Filed: July 10, 2014
[Unpublished]
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Before WOLLMAN, BEAM, and BENTON, Circuit Judges.
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PER CURIAM.
Daniel Gonzales pleaded guilty to one count of unlawful reentry after removal
following an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a) and
(b)(2). The district court1 imposed a 70-month sentence. On appeal, Gonzales argues
that his sentence is substantively unreasonable. We affirm.
Gonzales was born in Mexico and moved to the United States with his mother
at age five. In 2004, when he was seventeen years old, Gonzales transported
approximately fifty-five pounds of marijuana in Arkansas and was arrested for
possession of marijuana with intent to deliver. Gonzales did not appear before the
court and remained a fugitive until he was arrested in Missouri for assault in 2008.
In 2006, while he was on the lam, Gonzales was arrested in Texas after he waded
across the Rio Grande River. He pleaded guilty to the federal offense of illegally
entering the United States. He was sentenced to time served and deported. He later
returned to the United States, was arrested in Missouri, and was convicted of both the
Arkansas and Missouri offenses. He was sentenced to seven years’ imprisonment for
the Arkansas drug trafficking offense and five years’ imprisonment for the Missouri
assault, with the execution of the Missouri sentence suspended. He served
approximately eighteen months of his Arkansas sentence.
Gonzales was released from the Arkansas department of corrections to federal
immigration authorities in March 2010 and spent approximately six months in federal
custody. He pleaded guilty to illegal reentry, was sentenced to time served, and was
deported to Mexico. In June 2013, Gonzales was arrested in Missouri for driving
while intoxicated. He pleaded guilty to the state offense and shortly thereafter was
transferred to federal custody, where he pleaded guilty to the one count of illegal
reentry set forth above. Under the United States Sentencing Guidelines (Guidelines
or U.S.S.G.), Gonzales’s total offense level was 21, his criminal history category was
V, and his advisory Guidelines sentencing range was 70 to 87 months’ imprisonment.
1
The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.
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In his sentencing memorandum and at the sentencing hearing, Gonzales argued
that a Guidelines-range sentence would be greater than necessary to accomplish the
sentencing goals set forth in 18 U.S.C. § 3553(a). He requested a downward departure
or variance based on his assimilation into American culture. See U.S.S.G. § 2L1.2
cmt. n.8 (providing that a downward departure based on cultural assimilation may be
appropriate in certain circumstances). He also argued that the Arkansas conviction
counted against him twice because it caused his criminal history to be overstated and
his offense level unfairly to be increased by 16 levels. See U.S.S.G. § 2L1.2(b)(1)(A)
(16-level increase for a previous drug trafficking conviction for which the sentence
imposed exceeded 13 months’ imprisonment). Moreover, he argued that his drug
trafficking offense was relatively minor in that he was not selling hard drugs, it
involved no violence, and he was a minor when he transported the marijuana. The
district court determined that a sentence at the bottom of the advisory Guidelines
sentencing range was warranted.
We review the substantive reasonableness of a sentence under a “deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). “A
district court abuses its discretion when it fails to consider a relevant factor, gives
significant weight to an irrelevant or improper factor, or considers only appropriate
factors but nevertheless commits a clear error of judgment by arriving at a sentence
that lies outside the limited range of choice dictated by the facts of the case.” United
States v. San-Miguel, 634 F.3d 471, 475 (8th Cir. 2011) (quoting United States v.
Jones, 509 F.3d 911, 913 (8th Cir. 2007)).
Gonzales argues that the district court abused its discretion by placing undue
weight on Gonzales’s criminal history—including his repeated illegal entries into the
United States—and by giving no weight to Gonzales’s long residence in the United
States and his cultural assimilation. Gonzales, however, has failed to rebut the
presumption of reasonableness that we apply to sentences that fall within the advisory
Guidelines sentencing range. See Gall, 552 U.S. at 51 (“If the sentence is within the
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Guidelines range, the appellate court may . . . apply a presumption of
reasonableness.”). The district court acknowledged that it had considered the
sentencing factors set forth in § 3553(a) and that it had taken into account the
mitigating and aggravating factors the parties had addressed. The district court
considered the fact that Gonzales was only seventeen when he committed the drug
trafficking offense, but it also weighed the fact that Gonzales had committed crimes
after each illegal entry into the United States. Moreover, the district court was well
aware that Gonzales had moved to the United States when he was a child, that he had
lived in the United States for most of his life, that his immediate family lived in
Missouri, and that his five half-siblings were United States citizens. We thus hold that
the district court did not abuse its discretion in imposing a 70-month sentence.
Gonzales also argues that we should give little regard to the advisory sentencing
range because the Guidelines double count his criminal history and make no
distinction between minor aggravated felonies and serious aggravated felonies. We
have rejected the argument that impermissible double counting occurs when a prior
conviction is used to increase a defendant’s criminal history category and offense
level under Guidelines § 2L1.2(b)(1)(A). United States v. Delgado-Hernandez, 646
F.3d 562, 569 (8th Cir. 2011) (per curiam); see also United States v. Talamantes, 620
F.3d 901, 902 (8th Cir. 2010) (per curiam) (holding that the application of the 16-level
increase pursuant to § 2L1.2(b)(1)(A) is not an abuse of discretion per se). Although
the district court could have varied from the advisory Guidelines sentencing range
based on a policy disagreement with § 2L1.2(b)(1)(A), see Spears v. United States,
555 U.S. 261, 265-66 (2009), “our appellate role is limited to determining the
substantive reasonableness of a specific sentence[,]” United States v. Shuler, 598 F.3d
444, 448 (8th Cir. 2010).
The sentence is affirmed.
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