United States v. Selvis Garcia-Alvaro

Filing

PER CURIAM OPINION FILED - THE COURT: KERMIT E. BYE, C. ARLEN BEAM and DUANE BENTON (UNPUBLISHED) [3903556] [11-3553]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 11-3553
___________
United States of America,

*
*
Appellee,
*
* Appeal from the United States
v.
* District Court for the
* Northern District of Iowa.
Selvis Garcia-Alvaro, also known
*
as Carlos Enrique Maldonado,
*
[UNPUBLISHED]
*
Appellant.
*
___________
Submitted: April 16, 2012
Filed: April 23, 2012
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Before BYE, BEAM, and BENTON, Circuit Judges.
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PER CURIAM.
Selvis Garcia-Alvaro, a citizen of El Salvador, pled guilty to illegally
reentering the United States after being removed following the commission of an
aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). The district court1
sentenced Garcia-Alvaro at the top of his advisory Guidelines range to 51 months'
imprisonment. Garcia-Alvaro appeals, asserting that his within-Guidelines sentence
is substantively unreasonable because, although the district court considered
1

The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.

Appellate Case: 11-3553

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Date Filed: 04/23/2012 Entry ID: 3903556

appropriate sentencing factors, the court committed a clear error of judgment when
it weighed such factors. We affirm.
Under our deferential abuse-of-discretion standard, "it will be the unusual case
when we reverse a district court sentence–whether within, above, or below the
applicable Guidelines range–as substantively unreasonable." United States v.
Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc) (quotation omitted). Where,
as here, the sentence is within the advisory Guidelines range, we accord the sentence
a presumption of reasonableness. United States v. Borromeo, 657 F.3d 754, 756 (8th
Cir. 2011). The district court sentenced Garcia-Alvaro at the top of the advisory
Guidelines range based, in part, on the particularly egregious facts underlying GarciaAlvaro's 2001 state conviction for attempted second-degree sexual assault of a child.
Garcia-Alvaro contends that the district court should have given less weight to his
2001 conviction because (1) there were mitigating facts surrounding the attempted
sexual assault; (2) he was already punished in state court for the crime; (3) his offense
level was increased 16 levels due to the conviction, see U.S.S.G. § 2L1.2(b)(1)(A)(ii);
and (4) the conviction factored into his criminal history category. But, the district
court had "wide latitude to weigh the [18 U.S.C.] § 3553(a) factors in [this] case and
assign some factors greater weight than others in determining an appropriate
sentence." Borromeo, 657 F.3d at 757 (quotation omitted). And, the district court
was permitted to emphasize, among other factors, the abhorrence of Garcia-Alvaro's
attempted sexual assault to determine an appropriate sentence under § 3553(a), even
though the Guidelines already took into account his conviction for the offense.
United States v. Hubbard, 638 F.3d 866, 870-71 (8th Cir. 2011). After a careful
review of the sentencing record, we hold that Garcia-Alvaro has failed to overcome
the presumption of reasonableness we accord his within-Guidelines sentence.
Accordingly, we affirm the judgment of the district court.
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Date Filed: 04/23/2012 Entry ID: 3903556