## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 08-1534

___________ United States of America, * * Appellee, * Appeal from the United States * District Court for the v. * District of Minnesota. * Moises Flores Ventura, * [UNPUBLISHED] * Appellant. *

___________ Submitted: November 10, 2008 Filed: May 11, 2009

___________ Before MELLOY, BOWMAN, and SMITH, Circuit Judges.

___________ PER CURIAM. After Moises Flores Ventura was stopped for a minor traffic violation in Minnesota, law enforcement officers determin ed 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 ag reement, Flores Ventura pleaded guilty to illegally re-entering the United States afte r having been removed subsequent to a conviction for an aggravated felony. See8 U.S.C. § 1326(a), (b)(2). At Flores1 The Honorable Patrick J. Schiltz, United States District Judge for the District of Minnesota.
-2- Ventura's sentencing hearing, the District Court 1 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 imprisonm ent, a sentence at the low end of the Guidelines range. Flores Ventura appeal s, 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 merite d a sentence below the advisory Guidelines range based on proper consid eration 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 fo r an abuse of discretion, Gall v. United States , 128 S. Ct. 586, 597 (2007), and note th at a sentence within a properly calculated Guidelines range is presumptiv ely reasonable on appeal, Rita v. United States , 551 U.S. 338, 355–56 (2007).

The District Court did not abuse its di scretion 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 si xty months was sufficient but not greater than necessary to achieve the goals of se ntencing. After considering the additional argument proffered by counsel at the sentenci ng hearing, the District Court noted that Flores Ventura had been convicted of three felony drug offenses, had been incarcerated three times, and had been rem oved from the United States at least twice but that "none of this seems to have madeany difference to him as he continues to-3- exhibit no respect for the laws and in particul ar . . . 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 ab ility to provide support for and develop a relationship with his son. Rejecting Flores Ventura's arguments, the court found that Flores Ventura "has been abse nt during . . . just about all of his son's life, including being in prison during part of it," id. at 10, and that even "w hen [Flores Ventura] has entered this country illegally" he has "livedin Las Vegas and th en 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 fact or, misapplying the factors, or committing a clear error of judgment, and we hold that Flores Ventura's within-Guidelines sentence is reasonable. SeeUnited 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 rebutte d by evidence that the district court failed to consider a relevant factor, gave signi ficant weight to an improper or irrelevant factor, or committed a clear error of judgmen t in considering the appropriate factors). Accordingly, we affirm the judgment of the District Court.

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