United States v. Jose David Sumba-Loja

Filing

PER CURIAM OPINION FILED - THE COURT: Diana E. Murphy, Duane Benton and Bobby E. Shepherd (UNPUBLISHED) [4472484] [16-1267]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-1267
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jose David Sumba-Loja
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the District of Minnesota - St. Paul
____________
Submitted: November 14, 2016
Filed: November 23, 2016
[Unpublished]
____________
Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.
____________
PER CURIAM.
Appellant Jose David Sumba-Loja pled guilty, pursuant to a plea agreement, to
illegally re-entering the United States after removal, in violation of 6 U.S.C. §§ 202
and 557; 8 U.S.C. § 1326(a) and (b)(2); and failing to register as a sex offender,

Appellate Case: 16-1267

Page: 1

Date Filed: 11/23/2016 Entry ID: 4472484

pursuant to 18 U.S.C. § 2250(a). The district court1 sentenced the appellant to 51
months imprisonment to be followed by five years of supervised release. The
appellant appeals, arguing that his sentence is substantively unreasonable. We have
jurisdiction under 28 U.S.C. § 1291 and affirm.
I.
Sumba-Loja is a citizen of Equador who unlawfully entered the United States.
In 2012, he was convicted in Hennepin County District Court of second-degree
criminal sexual conduct with respect to the sexual assault of his girlfriend’s daughter.
He was sentenced to 36 months imprisonment and was required to register as a sex
offender for life. His prison term was stayed, and he was removed to Equador on
January 22, 2012. Sumba-Loja subsequently illegally re-entered the United States but
failed to register as a sex offender. The appellant was arrested at the Minneapolis-St.
Paul Airport on November 19, 2012, as he was about to leave to return to Equador.
In the plea agreement, the parties agreed that the applicable Guidelines section
for the offense of illegally re-entering the United States after removal was U.S.S.G.
§ 2L1.2 and that a 16-level enhancement for having been deported after conviction for
a felony that is a crime of violence applied. See U.S.S.G. § 2L1.2(b)(1)(A)(ii). The
parties further agreed that a one-level increase should be applied for grouping,
Sumba-Loja should receive a three-level decrease for acceptance of responsibility, and
the criminal history level was III. The applicable Guidelines range was 51-63 months.
At sentencing, Sumba-Loja requested a downward variance to a sentence of 30
months. In support of this request Sumba-Loja noted that he was not a chronic
immigration violator; he followed the example of siblings in originally entering the

1

The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
-2-

Appellate Case: 16-1267

Page: 2

Date Filed: 11/23/2016 Entry ID: 4472484

United States; he had a good employment record in this country; he was seriously
injured in a motorcycle accident after his return to Equador which left him with the
loss of vision in one eye and loss of the sense of smell, headaches, and the loss of
short- and long-term memory; and he only returned to the United States to address
financial distress which resulted from his accident and to avoid being a burden on his
family. He further asserted that he did not understand his obligation to register as a
sex offender. Sumba-Loja also argued that, prior to his apprehension, he had no
contacts with law enforcement in the United States, he does not constitute a danger
to the community, punishment is needed primarily to deter him from future violations
of the immigration laws of the United States, and he did not intend to return.
The United States recommended a sentence of 60 months. In support of its
recommendation, the government argued that Sumba-Loja constitutes a “grave danger
to very young children,” and that, by entering the United States illegally without
registering as a sex offender, Sumba-Loja made monitoring of his presence and
activities impossible. The government also pointed to Sumba-Loja’s history of minor
infractions including traffic offenses and failure to file tax returns. The United States
argued that the requested 60-month sentence was necessary to protect the public in the
United States and in Equador.
II.
Sumba-Loja claims that his sentence was substantively unreasonable in that the
district court failed to properly consider the 18 U.S.C. § 3553(a) factors. Specifically,
he contends that the district court did not adequately take into account his physical and
mental impairments and his motivation for re-entering the United States, namely his
desire to aid his family financially under the strain of his medical expenses. He also
argues the district court placed too much weight on public welfare concerns and
deterrence.

-3-

Appellate Case: 16-1267

Page: 3

Date Filed: 11/23/2016 Entry ID: 4472484

The substantive reasonableness of a defendant’s sentence is reviewed applying
a deferential abuse-of-discretion standard. United States v. Feemster, 572 F.3d 455,
461 (8th Cir. 2009) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). “A district
court abuses its discretion ‘when it fails to consider a relevant and significant factor,
gives significant weight to an irrelevant or improper factor, or considers the
appropriate factors but commits a clear error of judgment in weighing those factors.’”
United States v. Stong, 773 F.3d 920, 926 (8th Cir. 2014) (quoting United States v.
Robison, 759 F.3d 947, 950-51 (8th Cir. 2014)). We typically accord a presumption
of reasonableness to a sentence that falls within the advisory Guidelines range. United
States v. Kobriger, 825 F.3d 495, 498 (8th Cir. 2016) (citing United States v. Scales,
735 F.3d 1048, 1052 (8th Cir. 2013)). That we might have reasonably concluded “that
a different sentence was appropriate is insufficient to justify reversal of the district
court.” Gall, 552 U.S. at 51.
The district court sentenced Sumba-Loja to 51 months imprisonment—at the
bottom of the advisory Guidelines range. The court considered pre-sentence position
statements submitted by the parties wherein the factors referred to by Sumba-Loja in
this appeal were thoroughly presented. Comprehensive arguments were made by
counsel for the parties at sentencing. In explaining the reasons for the sentence
imposed, the district court acknowledged Sumba-Loja’s “significant medical change
since [he] was last sentenced,” and its impact on his memory. The court concluded
that the sentence imposed was appropriate to protect the public, to provide treatment
and rehabilitation for Sumba-Loja, and to deter future violations of the law. We are
satisfied that the district court considered all of the relevant and significant factors and
afforded each factor appropriate weight. See United States v. Gasaway, 684 F.3d 804,
808 (8th Cir. 2012) (holding that, despite defendant’s argument that the district court
afforded too much weight to some § 3553(a) factors and too little weight to others, it
is within the district court’s discretion to determine the weight given to each factor);
United States v. Townsend, 617 F.3d 991, 994 (8th Cir. 2010) (per curiam) (“The

-4-

Appellate Case: 16-1267

Page: 4

Date Filed: 11/23/2016 Entry ID: 4472484

district court may give some factors less weight than a defendant prefers or more to
other factors, but that alone does not justify reversal.” (citation omitted)).
Finally, Sumba-Loja argues that the district court gave too much weight to
U.S.S.G. § 2L1.2(b)(1)(A)(ii). Specifically, he asserts that the Guidelines section is
the product of flawed development and the 16-level increase it provides is excessive.
Because Sumba-Loja did not present this argument to the district court we review the
same for plain error. United States v. Phelps, 536 F.3d 862, 866 (8th Cir. 2008).
After conducting such review, we find no error in the district court’s consideration and
application of the Guidelines offense level increase specified in U.S.S.G.
§ 2L1.2(b)(1)(A)(ii).
III.
Accordingly, we affirm the sentence.
______________________________

-5-

Appellate Case: 16-1267

Page: 5

Date Filed: 11/23/2016 Entry ID: 4472484