United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-1534

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the

v. * District of Minnesota.

*

Moises Flores Ventura, * [UNPUBLISHED]

*

Appellant. *

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Submitted: November 10, 2008

Filed: May 11, 2009

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Before MELLOY, BOWMAN, and SMITH, Circuit Judges.

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PER CURIAM.

After Moises Flores Ventura was stopped for a minor traffic violation in

Minnesota, law enforcement officers determined that he was an illegal alien present

in the United States without being admitted or paroled, that he had two California

convictions for aggravated felonies, and that he had twice been removed from the

United States. Pursuant to a written plea agreement, Flores Ventura pleaded guilty to

illegally re-entering the United States after having been removed subsequent to a

conviction for an aggravated felony. See 8 U.S.C. § 1326(a), (b)(2). At Flores
1

The Honorable Patrick J. Schiltz, United States District Judge for the District

of Minnesota. 

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Ventura's sentencing hearing, the District Court1

 agreed with the parties that the

advisory Guidelines sentencing range was seventy to eighty-seven months'

imprisonment. The government recommended a sentence within the Guidelines range,

and Flores Ventura moved for a downward variance to a sentence of no more than

sixty months' imprisonment. The District Court denied Flores Ventura's motion and

imposed a seventy-month term of imprisonment, a sentence at the low end of the

Guidelines range. Flores Ventura appeals, arguing that his sentence is unreasonable.

We affirm. 

Flores Ventura contends that his sentence is longer than necessary to achieve

the goals of sentencing and that he merited a sentence below the advisory Guidelines

range based on proper consideration of the 18 U.S.C. § 3553(a) factors. Because

Flores Ventura does not challenge the District Court's calculation of the advisory

Guidelines range, we review his sentence for an abuse of discretion, Gall v. United

States, 128 S. Ct. 586, 597 (2007), and note that a sentence within a properly

calculated Guidelines range is presumptively reasonable on appeal, Rita v. United

States, 551 U.S. 338, 355–56 (2007). 

The District Court did not abuse its discretion in sentencing Flores Ventura at

the low end of the Guidelines range. Prior to the sentencing hearing, Flores Ventura's

counsel submitted a lengthy and detailed memorandum outlining Flores Ventura's

position that a sentence of no more than sixty months was sufficient but not greater

than necessary to achieve the goals of sentencing. After considering the additional

argument proffered by counsel at the sentencing hearing, the District Court noted that

Flores Ventura had been convicted of three felony drug offenses, had been

incarcerated three times, and had been removed from the United States at least twice

but that "none of this seems to have made any difference to him as he continues to
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exhibit no respect for the laws and in particular . . . the immigration laws of the United

States." Sent. Tr. at 15. The court also considered Flores Ventura's contention that

a Guidelines sentence would impair his ability to provide support for and develop a

relationship with his son. Rejecting Flores Ventura's arguments, the court found that

Flores Ventura "has been absent during . . . just about all of his son's life, including

being in prison during part of it," id. at 10, and that even "when [Flores Ventura] has

entered this country illegally" he has "lived in Las Vegas and then in Minnesota, not

in California near his son," id. at 11.

Having carefully considered the record, we conclude that the District Court did

not abuse its discretion by overlooking a relevant § 3553(a) factor, giving significant

weight to an improper or irrelevant factor, misapplying the factors, or committing a

clear error of judgment, and we hold that Flores Ventura's within-Guidelines sentence

is reasonable. See United States v. Cadenas, 445 F.3d 1091, 1094 (8th Cir. 2006)

(noting that although a sentence within the applicable Guidelines range is presumed

reasonable, that presumption may be rebutted by evidence that the district court failed

to consider a relevant factor, gave significant weight to an improper or irrelevant

factor, or committed a clear error of judgment in considering the appropriate factors).

Accordingly, we affirm the judgment of the District Court.

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