# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 13-3219

___________________________ United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.
Guillermo Ceballos-Santa Cruz

lllllllllllllllllllll Defendant - Appellant

____________ Appeal from United States District Court for the District of Nebraska - Omaha

____________ Submitted: March 10, 2014 Filed: June 26, 2014 [Published]

____________ Before COLLOTON, SHEPHERD, and KELLY, Circuit Judges.

____________

PER CURIAM.
Guillermo Ceballos-Santa Cruz (“Santa Cruz”) appeals the 18-month sentence the district court 1 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 pledguilty 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 guidelin e range was 24–30 months. However, the district court granted Santa Cruz a 2-le vel downward departure, pursuant to United States Sentencing Guidelines Manual (“ USSG”) § 5K3.1, making his sentencing guideline range 18–24 months. The court se ntenced him to the bottom of the new advisory range, a term of 18 months impris onment, with a 3-year term of supervised release to follow. After serving his pris on 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, fi ve days before the end of hi s term of supervised release, Santa Cruz was arrested in Arizona. A tw o-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 violati on of 8 U.S.C. §§ 1326(a) and (b)(1), and (2) illegal entry, a misdemeanor, in viol ation 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 reques ting a warrant be issued for Santa Cruz’s arrest. The

-2-warrant issued that same day. 2 The petition alleged he viol ated three conditions of his supervised release: that he not commit anothe r 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 reen ter 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 U SSG § 7B1.1(a)(3), which includes “conduct constituting . . . a federal, state, or local offense puni shable 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 sentenci ng 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 senten cing range for a “Grade B” violation. The court found Santa Cruz “in need of deterren ce 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 supervis ed release does not run during any period in which the person is imprisoned in connec tion 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, Sa nta Cruz’s supervised release term was tolled in January 2013 a nd had not yet begun to run agai n 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 expire d, so long as the violation occurred and the warrant alleging the violation issued beforethe expiration of the term of supervised release.

-3-into this country illegally,” and noted both th e 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 se ntencing 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 re levant 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 erro r 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 ma de 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 conduc t rather than the offense to which he pled guilty in classi fying 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 U SSG § 7B1.1 are base d 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 b ecause 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 al so recognized the significant reduction Santa Cruz received in both illegal reentry cases and decided a longer sentence would help achieve general and specific deterrence. Th e district court thus relied on appropriate

-4-factors in determining his sentence and se ntenced 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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