United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-2999

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United States of America, *

*

Plaintiff - Appellee, *

*

v. *

*

Hector Loaiza-Sanchez, *

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Defendant - Appellant. *

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Appeals from the United States

No. 09-3003 District Court for the

___________ Northern District of Iowa.

United States of America, *

*

Plaintiff - Appellee, *

*

v. *

*

Jose Luis Juarez-Gonzalez, *

*

Defendant - Appellant. *

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Submitted: June 18, 2010

Filed: September 22, 2010 

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Before LOKEN, BRIGHT, and GRUENDER, Circuit Judges.

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1

The HONORABLE MARK W. BENNETT, United States District Judge for

the Northern District of Iowa.

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LOKEN, Circuit Judge.

 Hector Loaiza-Sanchez and Jose Luis Juarez-Gonzalez pleaded guilty to

conspiring to distribute and possessing with intent to distribute a substantial quantity

of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846.

After determining an advisory guidelines sentencing range of 168 to 210 months for

each defendant, the district court1

 concluded based upon the sentencing factors in 18

U.S.C. § 3553(a) that a sentence within that range was appropriate. It then imposed

a sentence above the bottom of the range because each defendant committed his

offenses while in the country illegally. Loaiza-Sanchez and Juarez-Gonzalez appeal

their sentences of 188 and 200 months in prison, respectively, arguing primarily that

“alienage” is an improper sentencing factor. We affirm.

When reviewing the sentence imposed by a district court, we “first ensure that

the district court committed no significant procedural error, such as failing to calculate

(or improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen sentence.” If the

sentence is procedurally sound, we “then consider the substantive reasonableness of

the sentence imposed under an abuse-of-discretion standard.” Gall v. United States,

552 U.S. 38, 51 (2007). 

Loaiza-Sanchez and Juarez-Gonzalez contend that the district court based their

sentences on an improper sentencing factor, their status as illegal aliens. In

considering this contention, we begin with the relevant statute, 18 U.S.C. § 3661:

No limitation shall be placed on the information concerning the

background, character, and conduct of a person convicted of an offense
2

These legislative pronouncements are consistent with the Supreme Court’s

long-standing approach to sentencing: “The sentencing court or jury must be

permitted to consider any and all information that reasonably might bear on the proper

sentence for the particular defendant, given the crime committed.” Wasman v. United

States, 468 U.S. 559, 563 (1984).

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which a court of the United States may receive and consider for the

purpose of imposing an appropriate sentence.

We then turn to the relevant guidelines provision, U.S.S.G. § 1B1.4:

In determining the sentence to impose within the guideline range, or

whether a departure from the guidelines is warranted, the court may

consider, without limitation, any information concerning the background,

character and conduct of the defendant, unless otherwise prohibited by

law. See 18 U.S.C. § 3661.2

A relevant prohibition is found in the last sentence of 28 U.S.C. § 994(d), part of the

Sentencing Reform Act of 1984 that enacted the then-mandatory Guidelines: 

The Commission shall assure that the guidelines and policy statements

are entirely neutral as to the race, sex, national origin, creed, and

socioeconomic status of offenders.

The Commission reflected this prohibition in U.S.S.G. § 5H1.10, p.s. Loaiza-Sanchez

invokes this prohibition in suggesting that taking illegal alien status into account is

national origin discrimination because the majority of illegal aliens are Hispanics.

However, “a person’s legal status as a deportable alien is not synonymous with

national origin.” United States v. Lopez-Salas, 266 F.3d 842, 846 n.1 (8th Cir. 2001).

Thus, the district court committed no procedural error when, consistent with these

statutes and guideline provisions, it considered the illegal alien status of LoaizaSanchez and Juarez-Gonzalez.
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Ignoring these governing statutes and guidelines provisions, Loaiza-Sanchez

and Juarez-Gonzalez base their primary argument on our statement in United States

v. Onwuemene that “sentencing an offender on the basis of factors such as race,

national origin, or alienage violates the Constitution.” 933 F.2d 650, 651 (8th Cir.

1991) (emphasis added). That statement relied on more limited statements in preGuidelines sentencing decisions, United States v. Borrero-Isaza, 887 F.2d 1349, 1352

(9th Cir. 1989), and United States v. Gomez, 797 F.2d 417, 419 (7th Cir. 1986).

Taken literally, as Loaiza-Sanchez and Juarez-Gonzalez urge, the statement in

Onwuemene is simply wrong. The Supreme Court has expressly rejected “the claim

that ‘illegal aliens’ are a ‘suspect class.’” Plyler v. Doe, 457 U.S. 202, 219 n.19

(1982). To the contrary, the Court has explained:

In the exercise of its broad power over naturalization and

immigration, Congress regularly makes rules that would be unacceptable

if applied to citizens. The exclusion of aliens and the reservation of the

power to deport have no permissible counterpart in the Federal

Government’s power to regulate the conduct of its own citizenry. The

fact that an Act of Congress treats aliens differently from citizens does

not in itself imply that such disparate treatment is “invidious.”

Mathews v. Diaz, 426 U.S. 67, 79-80 (1976).

From the perspective of what a sentencing court may constitutionally consider,

the correct view of the issue was stated by Judge Richard Arnold, with his customary

incisiveness, in rejecting the argument that a defendant should have been granted a

downward departure to offset “the alienage-based increased severity of his sentence”:

Defendant entered this country illegally. Thereafter, he committed

aggravated felonies. He is therefore concededly deportable as a matter

of law. As a consequence of his deportability, he is . . . subjected to

more onerous conditions of confinement. There is nothing

unconstitutional or unfair about these consequences, all of which have
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followed upon the defendant’s voluntary acts. We cannot agree that he

is given a more onerous sentence solely on the basis of alienage. . . .

[T]he result is simply the permissible consequence of two things: the

commission of the crimes and the defendant’s status under the

immigration statutes.

United States v. Navarro, 218 F.3d 895, 897-98 (8th Cir. 2000); accord United States

v. Bahena, 223 F.3d 797, 807 (8th Cir. 2000), cert. denied, 531U.S. 1181 (2001). 

A defendant’s illegal entry into this country is a voluntary act. It is also

criminal misconduct. Like other prior criminal conduct, whether or not related to the

offense of conviction, it is part of “the history and characteristics of the defendant”

that the district court “shall consider” in imposing an appropriate sentence, 18 U.S.C.

§ 3553(a)(1), and it may be relevant in a particular case to the factors enumerated in

§ 3553(a)(2). See, e.g., United States v. Jenners, 537 F.3d 832, 835-36 (8th Cir. 2008)

(court may consider uncharged criminal conduct). It is not an impermissible

sentencing factor, and therefore the district court did not abuse its discretion by

considering it. 

Loaiza-Sanchez further argues that the district court committed procedural error

by treating the guidelines as mandatory; failing to consider the § 3553(a) factors;

failing to adequately explain the basis for the sentence imposed; and failing to

properly consider his request for a downward variance. After careful review of the

sentencing record, we conclude these contentions are without merit. See generally

United States v. Feemster, 572 F.3d 455, 463-64 (8th Cir. 2009) (en banc);

United States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009). As in United States v.

Lewis, 593 F.3d 765, 773 (8th Cir.), cert. denied, 130 S. Ct. 3375 (2010), the district

court considered Loaiza-Sanchez’s arguments for a downward variance but

appropriately exercised its discretion in rejecting them. 
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Finally, Loaiza-Sanchez and Juarez-Gonzalez argue that their sentences are

substantively unreasonable. As the sentences fall within the advisory guidelines

ranges, they are presumptively reasonable. Loaiza-Sanchez and Juarez-Gonzalez

concede that they entered the United States illegally, misconduct that was not taken

into account in determining the advisory ranges. The district court did not abuse its

discretion by sentencing them above the bottom of those ranges. 

The judgments of the district court are affirmed. 

BRIGHT, Circuit Judge, dissenting.

I respectfully dissent. In my view, increasing the sentence of a defendant

because he is in the country illegally makes little sense when the defendant will be

deported after serving his term of imprisonment. As I previously wrote in United

States v. Chavez, 230 F.3d 1089, 1092 (8th Cir. 2000) (Bright, J., concurring), long

sentences for illegal aliens punish not only the defendant but the American taxpayer.

“It would be more sensible to give . . . a stiff, but shorter sentence and then to

promptly deport him . . . as an example to other would-be drug dealers.” Id. 

Current data on our nation’s prison population and its associated costs

evidences this point. Nonviolent offenders constitute over 60% of the prison and jail

population. John Schmitt, Kris Warner & Sarika Gupta, The High Budgetary Cost of

Incarceration, Ctr. for Econ. & Policy Research, 1 (June 2010),

http://www.cepr.net/documents/publications/incarceration-2010-06.pdf. Nonviolent

drug offenders account for 25% of all offenders behind bars. Id. Our country

currently spends over $75 billion per year on corrections. Id. at 2. Reducing the

number of nonviolent offenders in our prisons and jails by half would save our nation

$16.9 billion per year. Id. It would save the federal government $2.1 billion per year.

Id. at 11. In this case, there is no record of violent conduct and no need to heavily

punish the defendants or to burden the American taxpayer.
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Moreover, there are approximately 11.9 million unauthorized immigrants living

in the United States. Jeffrey S. Passel, A Portrait of Unauthorized Immigrants in the

United States, Pew Hispanic Ctr., i (April 14, 2009),

http://pewhispanic.org/files/reports/107.pdf. The vast majority of whom come to this

country seeking employment and a better life. See generally id. The record here

contains no evidence that these defendants came to the United States for the purpose

of dealing drugs. And it simply seems unfair to punish these defendants differently

than a United States citizen who commits the same crime. 

Finally, the defendants’ unlawful entry into this country does not warrant the

penalty imposed by the district court. The maximum penalty for improper entry in

violation of 8 U.S.C. § 1325 is six months’ imprisonment. Here the district court

increased each defendants’ sentence by twenty months solely on the basis of

defendants’ unlawful entry. With respect to Juarez-Gonzalez, the district court stated,

“I’m going to increase the sentence up to 200 months [from 180] because the

defendant was in the country illegally and committed a crime while he was in the

country illegally . . . .” With respect to Loaiza-Sanchez, the court stated, “I probably

would have sentenced you right around the bottom of the guideline range, but I’m

increasing it to 188 months [from 168] because you were an illegal guest in the United

States and you committed a serious drug offense . . . .” Though the sentences

remained within the guideline range for defendants’ drug offenses, the court

effectively imposed a term of imprisonment for illegal entry over three times the

length of the maximum penalty allowed by statute. 

Again, these are nonviolent drug offenders, who did not enter this country to

traffic in narcotics, and who face deportation. Even if considering alienage is a

permissible sentencing factor, the defendants’ illegal entry does not warrant the harsh

penalties imposed here. 

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