United States v. Arnoldo Aguirre-Vasquez

Filing

PER CURIAM OPINION FILED - THE COURT: James B. Loken, Kermit E. Bye and Lavenski R. Smith (UNPUBLISHED) [4238547] [14-2581]

United States Court of Appeals
For the Eighth Circuit
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No. 14-2581
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Arnoldo Aguirre-Vasquez
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: December 8, 2014
Filed: January 28, 2015
[Unpublished]
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Before LOKEN, BYE, and SMITH, Circuit Judges.
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PER CURIAM.
Arnoldo Aguirre-Vasquez pleaded guilty to illegally reentering the United
States after being removed following an aggravated felony conviction, a violation of

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8 U.S.C. § 1326(a) and (b)(2). At sentencing, the district court1 determined, without
objection, that Aguirre-Vasquez’s advisory guidelines sentencing range was 57-71
months in prison. Aguirre-Vasquez urged the court to vary or depart downward and
impose a 30-month sentence based on the substantial overstatement of his criminal
history and his many years of “cultural assimilation” in the United States. See
U.S.S.G. § 2L1.2 comment. (n.7, 9). The government agreed a downward variance
was appropriate but urged the court to impose a 41-month sentence because of the
“history of prior removals from the country.” The district court imposed a 41-month
sentence, explaining:
I’ve considered the arguments of cultural assimilation as well as
the overrepresentation of the underlying felonies, which do have some
age on them . . . . [O]rdinarily my sentence would be something in the
neighborhood of 48 months, doubling the 24 [month sentence for the
prior illegal reentry conviction], but in light of the prosecution’s
recommendation and the bottom end of the next lower guideline being
41 months, I do find that 41 months is sufficient.
On appeal, Aguirre-Vasquez argues the district court imposed a substantively
unreasonable sentence because it gave too much weight to the 16-level enhancement
in U.S.S.G. § 2L1.2(b)(1)(A), which was not based on an assessment of empirical
data or the Sentencing Commission’s institutional expertise; and too little weight to
the overrepresentation of his criminal history, his thirty years of cultural assimilation
in this country, and his commitment to remain in Mexico when next deported. We
review the substantive reasonableness of a sentence for abuse of the district court’s
substantial sentencing discretion. This is well-traveled ground. The district court
may vary based on its policy disagreement with a particular guideline provision, but
it need not do so, whether the provision “reflects a policy judgment of Congress or

1

The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
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the Commission’s ‘characteristic’ empirical approach.” United States v. Talamantes,
620 F.3d 901, 902 (8th Cir. 2010) (quotation omitted). Likewise, the court’s decision
“to assign relatively greater weight to the nature and circumstances of the offense
than to the mitigating personal characteristics of the defendant” is well within its wide
discretion. United States v. Wisecarver, 644 F.3d 764, 774 (8th Cir. 2011). Here, the
district court carefully balanced mitigating circumstances against the disrespect for
the law demonstrated by Aguirre-Vasquez’s repeated illegal reentries and granted a
lesser downward variance than he urged. There was no abuse of discretion.
The judgment of the district court is affirmed.
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