United States v. Milton Gonzalez

Filing

OPINION FILED - THE COURT: William Jay Riley, Michael J. Melloy and Jane Kelly AUTHORING JUDGE:Jane Kelly (PUBLISHED) [4120290] [13-2122]

United States Court of Appeals
For the Eighth Circuit
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No. 13-2122
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Milton Gonzalez, also known as Milton Chavez-Estrada, also known as Edwardo
Trevion, also known as Gilberto Morales
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: November 18, 2013
Filed: February 4, 2014
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Before RILEY, Chief Judge, MELLOY and KELLY, Circuit Judges.
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KELLY, Circuit Judge.
Milton Gonzalez pled guilty to one count of illegal reentry subsequent to an
aggravated felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(2). The
district court1 sentenced him to 36 months in prison, 10 months below the calculated
1

The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.

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sentencing guideline range. On appeal Gonzalez argues that his sentence is
substantively unreasonable. We affirm.
I. Background
Gonzalez, a Mexican citizen, has been removed from the United States on
several occasions. In 2001 he was convicted in state court of possession with intent
to distribute amphetamine, an aggravated felony, and was sentenced to 5 years
imprisonment. In 2002 he was convicted in federal court of illegal reentry after
deportation and was sentenced to 6 months imprisonment. In 2005 Gonzalez was
removed after serving the sentences for these convictions. Law enforcement officials
found Gonzalez in this country again in 2012 after he was stopped for a traffic
violation. After being taken into custody, Gonzalez explained that he returned to the
United States to see his girlfriend and two young children when he thought he would
lose his battle with cancer.
Gonzalez was indicted for, and pled guilty to, one count of illegal reentry
subsequent to an aggravated felony conviction. Because of Gonzalez’s prior drug
conviction, the district court applied a 16-level enhancement to his base offense level
pursuant to U.S. Sentencing Guidelines Manual (“USSG”) § 2L1.2(b)(1)(A)(i) (2012).
With this enhancement, the district court adopted a guidelines range of 46–57 months.
However, the district court varied downward, and sentenced Gonzalez to 36 months
II. Discussion
In analyzing a district court sentence, we review first for procedural error and
then for substantive reasonableness. United States v. Feemster, 572 F.3d 455, 461

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(8th Cir. 2009) (en banc) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
Because Gonzalez does not argue that the district court committed any procedural
error, we look only at the substantive reasonableness of his 36-month sentence.
United States v. O’Connor, 567 F.3d 395, 397 (8th Cir. 2009). We review the
substantive reasonableness of a sentence for abuse of discretion. Feemster, 572 F.3d
at 461 (citing Gall, 552 U.S. at 51). A district court abuses its discretion when 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.”
Id. (quotation omitted).
Gonzalez contends that the district court improperly weighed the
18 U.S.C. § 3553(a) sentencing factors in two major respects. First, he argues that the
district court gave too much weight to the advisory guidelines—in particular, the
USSG § 2L1.2(b) 16-level enhancement. Second, he asserts that the district court
gave too little weight to Gonzalez’s significant health problems and family
circumstances. From the outset we note “[t]he district court has wide latitude to weigh
the § 3553(a) factors in each case and assign some factors greater weight than others
in determining an appropriate sentence.” United States v. Bridges, 569 F.3d 374, 379
(8th Cir. 2009).
A. USSG § 2L1.2(b) 16-Level Enhancement
Gonzalez argues that the 16-level enhancement pursuant to USSG § 2L1.2(b)
lacks a nexus to sound policy and empirical support. Thus, Gonzalez claims, the
district court abused its discretion by giving too much weight to the advisory
guidelines when sentencing him.
The Supreme Court has explained “district courts are entitled to reject and vary
categorically from the [Sentencing] Guidelines based on a policy disagreement with
those Guidelines.” Spears v. United States, 555 U.S. 261, 265–66 (2009). However,
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the Supreme Court did not say that district courts must reject or vary from the
sentencing guidelines. United States v. Talamantes, 620 F.3d 901, 902 (8th Cir. 2010)
(citing United States v. Barron, 557 F.3d 866, 871 (8th Cir. 2009)). This court has
also rejected the notion that a district court’s application of enhancements pursuant to
USSG § 2L1.2(b) is a per se abuse of discretion. Id. Particularly in light of the fact
that the district court varied downward in this case, we cannot say it gave too much
weight to the sentencing guidelines. See United States v. Moore, 581 F.3d 681, 684
(8th Cir. 2009) (“[W]here a district court has sentenced a defendant below the
advisory guideline range, it is nearly inconceivable that the court abused its discretion
in not varying downward still further.”).
B. Mitigating Circumstances
The district court also considered all the mitigating circumstances Gonzalez
presented, both in his sentencing memorandum and during the sentencing hearing. At
sentencing, the district court acknowledged that Gonzalez has significant health
problems and young children in the country. Even prior to sentencing, the district
court had granted Gonzalez’s request for immediate medical attention, signaling its
awareness of the severity of Gonzalez’s health problems. Though the district court
did not vary downward as significantly as Gonzalez requested, the district court
articulated a reasoned basis for its sentence. The court found that Gonzalez’s repeated
violations of our immigration laws and the need to deter others from similar conduct
warranted a lengthy sentence. Although we understand Gonzalez’s desire to see his
children, especially given his serious health problems, we cannot say that his sentence
was substantively unreasonable.
III. Conclusion
For these reasons, the judgment of the district court is affirmed.
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