United States Court of Appeals

For the Eighth Circuit

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No. 13-3219

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Guillermo Ceballos-Santa Cruz

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the District of Nebraska - Omaha

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 Submitted: March 10, 2014

 Filed: June 26, 2014

[Published]

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Before COLLOTON, SHEPHERD, and KELLY, Circuit Judges.

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PER CURIAM.

Guillermo Ceballos-Santa Cruz (“Santa Cruz”) appeals the 18-month sentence 

the district court1

 imposed upon finding he violated his conditions of supervised

1

The Honorable Laurie Smith Camp, Chief Judge, United States District Court

for the District of Nebraska. 
release, claiming the sentence imposed was unreasonable. We have jurisdiction under

28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.

On November 25, 2008, Santa Cruz pled guilty in the United States District

Court for the District of Nebraska to one count of illegal reentry of a removed alien,

in violation of 8 U.S.C. § 1326(a). Because he had a prior felony conviction, he was

subject to enhanced penalties under 8 U.S.C. § 1326(b)(1), including a maximum

sentence of 10 years of imprisonment. A presentence report was prepared,

determining that his sentencing guideline range was 24–30 months. However, the

district court granted Santa Cruz a 2-level downward departure, pursuant to United

States Sentencing Guidelines Manual (“USSG”) § 5K3.1, making his sentencing

guideline range 18–24 months. The court sentenced him to the bottom of the new

advisory range, a term of 18 months imprisonment, with a 3-year term of supervised

release to follow. After serving his prison term, Santa Cruz was removed from the

United States on February 2, 2010, and thus was not on active supervision. His

supervision term was set to expire on January 31, 2013.

On January 26, 2013, five days before the end of his term of supervised release,

Santa Cruz was arrested in Arizona. A two-count complaint was filed in the United

States District Court for the District of Arizona charging him with (1) illegal reentry

after deportation, a felony, in violation of 8 U.S.C. §§ 1326(a) and (b)(1), and

(2) illegal entry, a misdemeanor, in violation of 8 U.S.C. § 1325(a)(1). Count one

carried a maximum sentence of 10 years, while count two carried a maximum

sentence of 6 months. On January 29, 2013, Santa Cruz pled guilty to count two, the

misdemeanor charge, admitting he had illegally reentered the United States on January

23, 2013. He was sentenced to 180 days imprisonment; with credit for time served,

his projected release date was July 24, 2013. 

On June 10, 2013, the United States Probation Office for the District of

Nebraska filed a petition requesting a warrant be issued for Santa Cruz’s arrest. The

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warrant issued that same day.2

 The petition alleged he violated three conditions of his

supervised release: that he not commit another federal, state, or local crime; that he

notify his probation officer within 72 hours of being arrested or questioned by law

enforcement; and that he not illegally reenter the United States if deported. While

Santa Cruz admitted he committed another federal crime by illegally reentering the

United States, he argued his supervised release violation should be classified as a

“Grade C” violation under USSG § 7B1.1(a)(3), which includes “conduct constituting

. . . a federal, state, or local offense punishable by a term of imprisonment of one year

or less,” because the offense to which he pled in Arizona had a maximum sentence of

6 months. However, the government argued that his actual conduct—illegally

reentering the country following deportation—was punishable by a term of

imprisonment of over one year, such that his violation should be treated as a “Grade

B” violation. See USSG § 7B1.1(a)(2). Because Santa Cruz’s criminal history

category was IV, his recommended sentencing range for a “Grade B” violation was

12–18 months, while it was 6–12 months for a “Grade C” violation. See

USSG § 7B1.4(a). 

The district court sentenced Santa Cruz to 18 months imprisonment, with no

supervision to follow—the top of the sentencing range for a “Grade B” violation. The

court found Santa Cruz “in need of deterrence so that he does not continue to come

2

We note that, although Santa Cruz’s term of supervision had been set to expire

on January 31, 2013, “[a] term of supervised release does not run during any period

in which the person is imprisoned in connection with a conviction for a Federal, State,

or local crime unless the imprisonment is for a period of less than 30 consecutive

days.” 18 U.S.C. § 3624(e). As a result, Santa Cruz’s supervised release term was

tolled in January 2013 and had not yet begun to run again when the warrant issued on

June 10, 2013. Pursuant to 18 U.S.C. § 3583(i), a court can revoke a term of

supervised release after the term has expired, so long as the violation occurred and the

warrant alleging the violation issued before the expiration of the term of supervised

release. 

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into this country illegally,” and noted both the leniency the court had given him in his

earlier sentence and the fact he had been allowed to plead to a misdemeanor rather

than a felony in Arizona. 

Santa Cruz argues his sentence is substantively unreasonable because it is

greater than necessary to serve the sentencing purposes of 18 U.S.C. § 3553(a). We

review the substantive reasonableness of a sentence imposed for a violation of

supervised release for an abuse of discretion. United States v. Thunder, 553 F.3d 605,

607 (8th Cir. 2009) (citation omitted). An abuse of discretion occurs if a sentencing

court “fails to consider a relevant factor that should have received significant weight,

gives significant weight to an improper or irrelevant factor, or considers only the

appropriate factors but commits a clear error of judgment in weighing those factors.”

United States v. Watson, 480 F.3d 1175, 1177 (8th Cir. 2007) (citation omitted). 

The sentence imposed by the district court was substantively reasonable. Santa

Cruz argues the district court should have treated his Arizona misdemeanor conviction

as a “Grade C” violation, even though the underlying conduct made it a “Grade B”

violation, because that would more fairly represent the severity of his violation. 

However, a district court may rely on a defendant’s actual conduct rather than the

offense to which he pled guilty in classifying his supervised release violation under

the sentencing guidelines. See United States v. Schwab, 85 F.3d 326, 327 (8th Cir.

1996) (noting the violation grades under USSG § 7B1.1 are based on actual conduct);

see also USSG § 7B1.1, cmt. n.1. Here, the district court treated Santa Cruz’s Arizona

conviction as a “Grade B” violation because his actual conduct “constitut[ed] an

offense punishable by a term of imprisonment exceeding one year.” USSG

§ 7B1.1(a)(2); see also 8 U.S.C. § 1326(b)(1). The district court was not required to

treat it as a “Grade C” violation just because the court in Arizona allowed him to plead

guilty to a lesser offense. The court also recognized the significant reduction Santa

Cruz received in both illegal reentry cases and decided a longer sentence would help

achieve general and specific deterrence. The district court thus relied on appropriate

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factors in determining his sentence and sentenced Santa Cruz within the properly

calculated guideline range. 

After reviewing the record, we conclude the district court did not abuse its

discretion in sentencing Santa Cruz at the top of his guideline range for violating the

conditions of his supervised release. Accordingly, we affirm. 

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