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[Unpublished]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
8 U.S.C. § 1326(a) and (b)(2). At sentencing, the district court determined, without 1

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

The Honorable Ann D. Montgomery, United States District Judge for the

1

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 ofthe 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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