United States Court of Appeals

For the Eighth Circuit

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No. 16-1267

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Jose David Sumba-Loja

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: November 14, 2016

Filed: November 23, 2016

[Unpublished]

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Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.

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PER CURIAM.

Appellant Jose David Sumba-Loja pled guilty, pursuant to a plea agreement, to

illegally re-entering the United States after removal, in violation of 6 U.S.C. §§ 202

and 557; 8 U.S.C. § 1326(a) and (b)(2); and failing to register as a sex offender,
pursuant to 18 U.S.C. § 2250(a). The district court1

 sentenced the appellant to 51

months imprisonment to be followed by five years of supervised release. The

appellant appeals, arguing that his sentence is substantively unreasonable. We have

jurisdiction under 28 U.S.C. § 1291 and affirm.

I.

Sumba-Loja is a citizen of Equador who unlawfully entered the United States. 

In 2012, he was convicted in Hennepin County District Court of second-degree

criminal sexual conduct with respect to the sexual assault of his girlfriend’s daughter. 

He was sentenced to 36 months imprisonment and was required to register as a sex

offender for life. His prison term was stayed, and he was removed to Equador on

January 22, 2012. Sumba-Loja subsequently illegally re-entered the United States but

failed to register as a sex offender. The appellant was arrested at the Minneapolis-St.

Paul Airport on November 19, 2012, as he was about to leave to return to Equador. 

In the plea agreement, the parties agreed that the applicable Guidelines section

for the offense of illegally re-entering the United States after removal was U.S.S.G.

§ 2L1.2 and that a 16-level enhancement for having been deported after conviction for

a felony that is a crime of violence applied. See U.S.S.G. § 2L1.2(b)(1)(A)(ii). The

parties further agreed that a one-level increase should be applied for grouping,

Sumba-Loja should receive a three-level decrease for acceptance of responsibility, and

the criminal history level was III. The applicable Guidelines range was 51-63 months.

At sentencing, Sumba-Loja requested a downward variance to a sentence of 30

months. In support of this request Sumba-Loja noted that he was not a chronic

immigration violator; he followed the example of siblings in originally entering the

1

The Honorable Joan N. Ericksen, United States District Judge for the District

of Minnesota. 

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United States; he had a good employment record in this country; he was seriously

injured in a motorcycle accident after his return to Equador which left him with the

loss of vision in one eye and loss of the sense of smell, headaches, and the loss of

short- and long-term memory; and he only returned to the United States to address

financial distress which resulted from his accident and to avoid being a burden on his

family. He further asserted that he did not understand his obligation to register as a

sex offender. Sumba-Loja also argued that, prior to his apprehension, he had no

contacts with law enforcement in the United States, he does not constitute a danger

to the community, punishment is needed primarily to deter him from future violations

of the immigration laws of the United States, and he did not intend to return.

The United States recommended a sentence of 60 months. In support of its

recommendation, the government argued that Sumba-Loja constitutes a “grave danger

to very young children,” and that, by entering the United States illegally without

registering as a sex offender, Sumba-Loja made monitoring of his presence and

activities impossible. The government also pointed to Sumba-Loja’s history of minor

infractions including traffic offenses and failure to file tax returns. The United States

argued that the requested 60-month sentence was necessary to protect the public in the

United States and in Equador. 

II.

Sumba-Loja claims that his sentence was substantively unreasonable in that the

district court failed to properly consider the 18 U.S.C. § 3553(a) factors. Specifically,

he contends that the district court did not adequately take into account his physical and

mental impairments and his motivation for re-entering the United States, namely his

desire to aid his family financially under the strain of his medical expenses. He also

argues the district court placed too much weight on public welfare concerns and

deterrence. 

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The substantive reasonableness of a defendant’s sentence is reviewed applying

a deferential abuse-of-discretion standard. United States v. Feemster, 572 F.3d 455,

461 (8th Cir. 2009) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). “A district

court abuses its discretion ‘when it fails to consider a relevant and significant factor,

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

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

United States v. Stong, 773 F.3d 920, 926 (8th Cir. 2014) (quoting United States v.

Robison, 759 F.3d 947, 950-51 (8th Cir. 2014)). We typically accord a presumption

of reasonableness to a sentence that falls within the advisory Guidelines range. United

States v. Kobriger, 825 F.3d 495, 498 (8th Cir. 2016) (citing United States v. Scales,

735 F.3d 1048, 1052 (8th Cir. 2013)). That we might have reasonably concluded “that

a different sentence was appropriate is insufficient to justify reversal of the district

court.” Gall, 552 U.S. at 51.

The district court sentenced Sumba-Loja to 51 months imprisonment—at the

bottom of the advisory Guidelines range. The court considered pre-sentence position

statements submitted by the parties wherein the factors referred to by Sumba-Loja in

this appeal were thoroughly presented. Comprehensive arguments were made by

counsel for the parties at sentencing. In explaining the reasons for the sentence

imposed, the district court acknowledged Sumba-Loja’s “significant medical change

since [he] was last sentenced,” and its impact on his memory. The court concluded

that the sentence imposed was appropriate to protect the public, to provide treatment

and rehabilitation for Sumba-Loja, and to deter future violations of the law. We are

satisfied that the district court considered all of the relevant and significant factors and

afforded each factor appropriate weight. See United States v. Gasaway, 684 F.3d 804,

808 (8th Cir. 2012) (holding that, despite defendant’s argument that the district court

afforded too much weight to some § 3553(a) factors and too little weight to others, it

is within the district court’s discretion to determine the weight given to each factor);

United States v. Townsend, 617 F.3d 991, 994 (8th Cir. 2010) (per curiam) (“The

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district court may give some factors less weight than a defendant prefers or more to

other factors, but that alone does not justify reversal.” (citation omitted)).

Finally, Sumba-Loja argues that the district court gave too much weight to

U.S.S.G. § 2L1.2(b)(1)(A)(ii). Specifically, he asserts that the Guidelines section is

the product of flawed development and the 16-level increase it provides is excessive. 

Because Sumba-Loja did not present this argument to the district court we review the

same for plain error. United States v. Phelps, 536 F.3d 862, 866 (8th Cir. 2008). 

After conducting such review, we find no error in the district court’s consideration and

application of the Guidelines offense level increase specified in U.S.S.G.

§ 2L1.2(b)(1)(A)(ii).

III.

Accordingly, we affirm the sentence.

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