United States Court of Appeals

For the Eighth Circuit

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No. 13-2280

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Cresencio Trujillo-Duran, also known as Salbador Carrillo

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

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 Submitted: February 10, 2014

 Filed: March 11, 2014

[Unpublished]

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Before LOKEN, BOWMAN, and BYE, Circuit Judges.

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PER CURIAM.

Cresencio Trujillo-Duran pleaded guilty to being an illegal alien in possession

of a firearm, 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2), and the District Court

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The Honorable Brian S. Miller, United States District Judge for the Eastern 1

District of Arkansas.
sentenced him to 60 months’ imprisonment, an upward variance from the advisory

U.S. Sentencing Guidelines range of 21 to 27 months’ imprisonment. Trujillo-Duran

appeals, arguing that the District Court abused its discretion by imposing a

substantively unreasonable sentence. We affirm. 

We “review all sentences—whether inside,just outside, orsignificantly outside

the Guidelines range—under a deferential abuse-of-discretion standard.” Gall v.

United States, 552 U.S. 38, 41 (2007). A district court has broad discretion to

consider the sentencing factors described in 18 U.S.C. § 3553(a), determine the

relative weight to be given each factor, and impose an appropriate sentence. United

States v. Richart, 662 F.3d 1037, 1054 (8th Cir. 2011), cert. denied, 132 S. Ct. 1942

(2012). The court abuses its discretion if it fails to consider a relevant sentencing

factor, gives significant weight to an improper or irrelevant factor, or commits a clear

error of judgment in weighing the relevant factors. See United States v. Feemster,

572 F.3d 455, 461 (8th Cir. 2009) (en banc).

In explaining its decision to vary upward and impose a 60-month sentence, the

District Court emphasized Trujillo-Duran’s involvement in an incident during which

multiple gunshots were fired from a moving vehicle in a populated area. This wasthe

incident underlying the instant firearm-possession offense and wastherefore relevant

conduct for which Trujillo-Duran received no criminal history points. The court also

noted Trujillo-Duran’s participation in an attempted robbery, duringwhich the female

victim was threatened with a taser in a movie-theater parking lot and eventually hid

beneath her vehicle to avoid her assailants. The court then engaged in a lengthy

colloquy with Trujillo-Duran, who repeatedly denied responsibilityfor these offenses

and claimed only to have been the victim of “bad luck.” Tr. of Change of Plea and

Sent. Hr’g at 20.

Trujillo-Duran contends that the court committed a clear error of judgment by

citing only the seriousness of his offense and the need for deterrence of future crimes

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as justifications for the upward variance and by relying too heavily on his criminal

history—particularly because his prior crimes were already accounted for in the

calculation of his advisory Guidelines sentencing range. 

First, § 3553(a) allows sentencing courts to vary upward based on

underrepresented criminal history, among other factors. See 18 U.S.C. § 3553(a)(1),

(a)(2)(A), (a)(2)(C). And we have previously held that a sentencing court may vary

fromthe Guidelines range based on a defendant’s criminal history, even if that history

was used in calculating the advisory Guidelines range. See Richart, 662 F.3d at 1052

(noting that an upward variance based on factors already considered in a Guidelines

calculation are permissible when the advisory Guidelines sentence does not fully

account for those factors or when the court applies broader § 3553(a) factors); United

States v. Barrett, 552 F.3d 724, 727 (8th Cir. 2009) (same). Second, the court’s

decision to assign significant weight to the nature and circumstances of TrujilloDuran’s prior offenses and the need to deter him from future criminal conduct was

well within the court’s broad sentencing discretion. See Richart, 662 F.3d at 1054. 

In sum, the DistrictCourt did not abuse its discretion by considering these factors and

concluding that an upward variance from the advisory Guidelines range was

appropriate. 

Giving “due deference to the district court’s decision that the § 3553(a) factors,

on a whole, justify the extent of the variance,” Gall, 552 U.S. at 51, we conclude that

Trujillo-Duran’s sentence is not unreasonable. Accordingly, we affirm the judgment

of the District Court. 

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