United States v. Jorge Luis Rosario-Moctezuma , 411 F. App'x 942 ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2776
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District of
* Minnesota.
Jorge Luis Rosario-Moctezuma, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 14, 2011
Filed: February 28, 2011
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Before RILEY, Chief Judge, WOLLMAN, and BYE, Circuit Judges.
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PER CURIAM.
Jorge Luis Rosario-Moctezuma pleaded guilty to illegal reentry after
deportation, in violation of 8 U.S.C. § 1326(a), (b)(2), and was sentenced to 40
months’ imprisonment. His initial sentencing range calculated pursuant to the United
States Sentencing Guidelines (U.S.S.G.) was 57 to 71 months, but the district court1
granted his motion for downward departure under U.S.S.G. § 4A1.3(b) after finding
his criminal history category was overstated. As a result, Rosario-Moctezuma’s
Guidelines range went down to 46 to 57 months, from which the district court varied
1
The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
downward still further to impose a sentence of 40 months. In the present appeal,
Rosario-Moctezuma maintains the district court’s sentence “is just too lengthy.” We
affirm.
We review a sentence chosen by the district court under an abuse-of-discretion
standard considering the substantive reasonableness of the sentence under the totality
of the circumstances. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir.
2009) (en banc). A district court abuses its discretion if it “(1) fails to consider a
relevant factor that should have received significant weight; (2) gives significant
weight to an improper or irrelevant factor; or (3) considers only the appropriate
factors but in weighing those factors commits a clear error of judgment.” United
States v. Holy Bull, 613 F.3d 871, 874 (8th Cir. 2010) (internal quotation marks
omitted). When a district court varies from the advisory Guidelines range, we must
“give ‘due deference’ to the district court’s decision that ‘the § 3553(a) factors, on a
whole, justify the extent of the variance.’” United States v. Lehmann, 513 F.3d 805,
808 (8th Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 50 (2007)).
Sentences within the Guidelines range are presumed reasonable. United States
v. Zastrow, 534 F.3d 854, 856 (8th Cir. 2008). Where, as here, the district court
sentences a defendant below the Guidelines range, “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). Our review of the sentencing transcript
confirms the district court properly considered the 18 U.S.C. § 3553(a) factors,
focusing on Rosario-Moctezuma’s “history and characteristics,” as well as his “family
circumstances” that compelled him to reenter the country illegally. The district court
was sympathetic to the defendant’s situation. In addition to granting Rosario-
Moctezuma’s motion for downward departure, the court varied from the Guidelines
sentence downward, in part, because Rosario-Moctezuma was “returning really to be
with family, as opposed to returning to commit crimes.” We find no error in the
district court’s sound analysis and ultimate sentence. United States v. Canania, 532
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F.3d 764, 773-74 (8th Cir. 2008) (finding no error where the district court varied
downward to impose the below-the-Guidelines sentence and otherwise considered
§ 3553(a) factors).
Rosario-Moctezuma contends the district court abused its discretion by not
varying downward still further based on the absence of a fast-track program in the
district where he was sentenced. This argument is squarely foreclosed by our
decision in United States v. Gonzalez-Alvarado, 477 F.3d. 648, 651 (8th Cir. 2007),
abrogated on other grounds by Gall v. United States, 552 U.S. 38 (2007), where we
concluded “variances based on the absence of fast-track programs are impermissible.”
Rosario-Moctezuma’s “respectful[] disagree[ment]” with our holding, unsupported
by any meaningful argument for its modification or reversal, nudges his argument
dangerously close to the line of frivolousness, yet does nothing to undermine the
binding nature of the precedent. In the absence of any other evidence suggesting an
abuse of discretion, we affirm the district court’s judgment.
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