United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-3797

___________

United States of America, *

*

Appellee, *

*

v. *

*

Jesus Fabel Diaz-Pellegaud, also known *

as Fael, also known as Fabel, *

*

Appellant. *

___________ Appeals from the United States

District Court for the

No. 10-3828 District of South Dakota.

___________

United States of America, *

*

Appellee, *

*

v. *

*

Jose Garcia, also known as Maya, also *

known as Moya, *

*

Appellant. *
___________

No. 10-3830

___________

United States of America, *

*

Appellee, *

*

v. *

*

Jose Enrique Burgos-Valdez, also *

known as Jose Enrique Burgos, also *

known as Feriche, also known as *

Feruchi, also known as Arturo, *

*

Appellant. *

___________

No. 11-1002

___________

United States of America, *

*

Appellee, *

*

v. *

*

Benjamin Melendez-Rocha, also known *

as Roberto Barron, also known as *

Enano, also known as Nano, also *

known as Seta, *

*

Appellant. *

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___________

Submitted: October 20, 2011

Filed: January 25, 2012

___________

Before MELLOY, BEAM, and GRUENDER, Circuit Judges.

___________

GRUENDER, Circuit Judge.

Jesus Fabel Diaz-Pellegaud, Jose Garcia, Jose Enrique Burgos-Valdez, and

Benjamin Melendez-Rocha appeal their convictions and sentences on various

grounds. For the reasons set out below, we affirm the convictions and sentences

imposed by the district court.1

I. BACKGROUND

This case stems from a multi-year investigation into an interstate and

international drug smuggling and distribution organization. TheGovernment asserted

at trial that Diaz-Pellegaud arranged for the smuggling of methamphetamine and

marijuana from Mexico to the United States and supervised the distribution of these

drugs in locales including Phoenix, Arizona, and Sioux Falls, South Dakota. Garcia

provided “muscle” for the organization and traveled north from Mexico as part of a

team of enforcers to assist drug dealers in Sioux Falls with debt collection efforts. 

Burgos-Valdez was involved in the transportation and smuggling of drugs for the

organization. Melendez-Rocha was involved in methamphetamine and marijuana

distribution in Phoenix and elsewhere and helped launder money for the organization

as well.

The Honorable Lawrence L. Piersol, United States District Judge for the

1

District of South Dakota.

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The investigation began with a traffic stop in New Mexico on July 12, 2007,

during which Burgos-Valdez and two others were found to be transporting more than

three kilograms of methamphetamine and a loaded .45 caliber handgun in their car

while driving from Phoenix to Sioux Falls. Documents seized during this stop led

police to investigate a house at 512 North Menlo Avenue in Sioux Falls. On April

1, 2008, acting pursuant to a search warrant, police searched the Menlo Avenue

house, seizing over a kilogram of methamphetamine, cash, and a significant amount

of paperwork related to drug distribution, including ledgers and “owe sheets.” 

Shortly thereafter, police arrested the owner of the Menlo Avenue house, Dario

Verdugo-Galaviz, one of the key players in the organization’s distribution operation

in both Phoenix and Sioux Falls.

On February 20, 2009, police simultaneously executed a number of search

warrants on houses with ties to the organization, including one belonging to Fidel

“Pelon” Villaneuva-Godinez, an important figure in the Sioux Falls distribution

operation. At Pelon’s house, officers found cash and almost half a kilogram of

methamphetamine. Information gleaned from the searches also enabled the

subsequent interception of a drug shipment bound for Sioux Falls containing over a

kilogramof methamphetamine and approximately fifty pounds of marijuana. On July

1, 2009, Diaz-Pellegaud was arrested in Idaho in a pickup truck containing

approximately 160 pounds of marijuana. 

A grand jury indicted twenty-seven individuals in connection with this

investigation. Twenty-one pled guilty, and a majority of these cooperated with the

authorities. The remaining six—Michelle Munoz, who was with Burgos-Valdez

when he was arrested, Manuel Ramirez, who was with Diaz-Pellegaud when he was

arrested, and the four appellants—pled not guilty and proceeded to trial. After an

eight day trial, the jury acquitted Munoz and convicted all four appellants and

Ramirez of conspiracy to distribute 500 grams or more of a substance containing

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methamphetamine; Diaz-Pellegaud, Garcia, and Ramirez of conspiracy to distribute

100 kilograms or more of a substance containing marijuana; and Diaz-Pellegaud and

Melendez-Rocha of conspiracy to launder money. The district court sentenced DiazPellegaud to 360 months’ imprisonment, Garcia to 151 months’ imprisonment,

Burgos-Valdez to 240 months’ imprisonment, and Melendez-Rocha to 348 months’

imprisonment. All four timely appeal.

2

II. DISCUSSION

On appeal, Diaz-Pellegaud argues that the evidence introduced at trial was

insufficient to support his convictions for conspiracy to commit money laundering

and for conspiracy to distribute methamphetamine and marijuana. Garcia similarly

challenges the sufficiency of the evidence for his convictions for conspiracy to

distribute methamphetamine and marijuana and also contends that the district court

abused its discretion by failing to adjust his sentencing guidelines offense level

downward on the basis of minor or minimal participant status. He further argues that

his sentence issubstantively unreasonable. Burgos-Valdez challenges the sufficiency

of the evidence for his conviction of conspiracy to distribute methamphetamine and

claims that his sentence is substantively unreasonable. Melendez-Rocha contends

that the district court erred in denying his motion for a new trial on the basis of

statements by a co-defendant’s attorney that allegedly violated a pretrial order, and

he argues that his sentence is substantively unreasonable.

A. Diaz-Pellegaud

1. Evidentiary Sufficiency: Money Laundering

We consider challenges to the sufficiency of the evidence to support a

conviction de novo but consider the evidence presented “in the light most favorable

Ramirez was sentenced to 162 months’ imprisonment and did not appeal his

2

convictions or sentence.

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to the government, resolving conflicts in the government’s favor, and accepting all

reasonable inferencesthatsupport the verdict.” United States v. Yarrington, 634 F.3d

440, 449 (8thCir. 2011) (quoting United States v. Scofield, 433 F.3d 580, 584-85 (8th

Cir. 2006)). Reversal for evidentiary insufficiency is only warranted when, based on

the evidence before it, “no reasonable jury could have found the defendant guilty

beyond a reasonable doubt.” United States v. Espinosa, 585 F.3d 418, 423 (8th Cir.

2009) (quoting United States v. Thompson, 533 F.3d 964, 970 (8th Cir. 2008)). 

Diaz-Pellegaud was convicted at trial of conspiring to launder money in

violation of 18 U.S.C. § 1956(h). “Conspiring to launder money . . . requires that the

defendant ‘agreed with another person to violate the substantive provisions of the

money-laundering statute.’” United States v. Heid, 651 F.3d 850, 854 (8th Cir. 2011)

(quoting United States v. Hynes, 467 F.3d 951, 964 (6th Cir. 2006)). The substantive

money laundering provision that Diaz-Pellegaud was convicted of having conspired

to violate has four elements: (1) that the defendant conducted or attempted to conduct

a financial transaction that affected interstate or foreign commerce; (2) that the

financial transaction involved property representing the proceeds of illegal activity;

(3) that the defendant knew that the property represented the proceeds of illegal

activity; and (4) that the defendant conducted the financial transaction knowing that

the transaction was intended to promote the carrying on of illegal activity. 18 U.S.C.

§ 1956(a)(1)(A)(i); see United States v. Slagg, 651 F.3d 832, 844 (8th Cir. 2011).

Bank account deposits count as financial transactions for the purposes of the money

laundering statute. 18 U.S.C. § 1956(c)(3). For example, in United States v.

Johnson, 619 F.3d 910 (8th Cir. 2010), we upheld a promotion-of-illegal-activity

money laundering conviction based on the defendant’s deposits of the proceeds of

methamphetamine sales into a bank account controlled by a co-conspirator. Id. at

919-20. 

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Diaz-Pellegaud argues that the Government did not introduce any evidence

connecting him to any financial transactions and that all the Government showed was

that he read “a series of numbers which correlated to Wells Fargo bank accounts”

over the phone to a co-conspirator, Dario Verdugo-Galaviz. He also argues that there

is little to corroborate the trial testimony of Verdugo-Galaviz.

Verdugo-Galaviz testified that both he and a fellow drug dealer named Carlos

Clemente “Camargo” Perez-Pantaleon had deposited money from their Sioux Falls

drug distribution operation into bank accounts designated by Diaz-Pellegaud in order

to pay him for drugs. As the payments continued, drugs continued to arrive in Sioux

Falls. Evidence from other cooperating witnesses established that money from the

accounts was later withdrawn in Phoenix. The jury was entitled to credit such

testimony. See United States v. Boyce, 564 F.3d 911, 916 (8th Cir. 2009) (holding

that a fact-finder’s determination as to the credibility of a witness is virtually

unreviewable on appeal).

Viewing all the evidence in the light most favorable to the Government and

accepting all reasonable inferences, Yarrington, 634 F.3d at 449, a reasonable jury

could find that Diaz-Pellegaud agreed with Verdugo-Galaviz and Camargo that they

would deposit the proceeds from their drug sales into his bank accounts to pay DiazPellegaud for the drugs he was supplying and to ensure their continued supply of

drugs. Given that their deposits would be violations of § 1956(a)(1)(A)(i), Johnson,

619 F.3d at 919-20, this agreement would be sufficient to support the conviction of

Diaz-Pellegaud for conspiracy under § 1956(h). Therefore, we affirmthis conviction.

2. Evidentiary Sufficiency: Methamphetamine and Marijuana

Diaz-Pellegaud next challenges the sufficiency of the evidence for his

convictions for conspiring to distribute methamphetamine and conspiring to distribute

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marijuana, both in violation of 21 U.S.C. § 846. “To establish that a defendant

conspired to distribute drugs under 21 U.S.C. § 846, the government must prove: (1)

that there was a conspiracy, i.e., an agreement to distribute the drugs; (2) that the

defendant knew of the conspiracy; and (3) that the defendant intentionally joined the

conspiracy.” United States v. Jiminez, 487 F.3d 1140, 1146 (8th Cir. 2007) (quoting

United States v. Espino, 317 F.3d 788, 792 (8th Cir. 2003)).

Detailed evidence supports these convictions. Verdugo-Galaviz testified at

trial that Diaz-Pellegaud approached him in Phoenix, proposing that he sell drugs for

him and recruit others to do the same. Verdugo-Galaviz stated that he agreed to this

proposal and then successfully recruited others to distribute and personally distributed

both methamphetamine and marijuana that he received from Diaz-Pellegaud. 

Verdugo-Galaviz described how he, Diaz-Pellegaud, and others would unload

methamphetamine and marijuana from hidden compartments in freight trains in

locationsincluding Fargo, North Dakota, and Salt Lake City, Utah. He also explained

how, working with others, he began to distribute Diaz-Pellegaud’s drugs in Sioux

Falls, South Dakota. Other drug dealers corroborated this account of DiazPellegaud’s central role in both the smuggling and distribution of drugs. Once again,

the jury’s determinations of witness credibility are “virtually unreviewable on

appeal.” Boyce, 564 F.3d at 916 (quoting United States v. Gomez-Perez, 452 F.3d

739, 743 (8th Cir. 2006)). Diaz-Pellegaud’s alias “Fael” also was found in a drug

ledger found at the Menlo Avenue house, and he personally was arrested in a pickup

truck containing approximately 160 pounds of marijuana. The evidence presented,

considered “in the light most favorable to the government, resolving conflicts in the

government’s favor, and accepting all reasonable inferencesthatsupport the verdict,”

Yarrington, 634 F.3d at 449, was easily sufficient to support the jury’s convictions

on both conspiracy counts. Accordingly, we affirm these convictions.

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B. Garcia

1. Evidentiary Sufficiency

Garcia was convicted at trial of conspiring to distribute methamphetamine and

conspiring to distribute marijuana, both in violation of 21 U.S.C. § 846. On appeal,

he argues that no reasonable jury could find that he had formed the requisite intent

to join the conspiracies or that he had known of their respective purposes, both

necessary elements of these convictions. See Jiminez, 487 F.3d at 1146. His

activities related to the conspiracies were, in his view, “mere presence” and not actual

involvement, and therefore the evidence presented against him was insufficient to

sustain his conspiracy convictions. See United States v. Fitz, 317 F.3d 878, 882 (8th

Cir. 2003).

Construed in the light most favorable to the government, Yarrington, 634 F.3d

at 449, witness testimony in this case established far more than Garcia’s mere

presence. Elias Lechuga testified that Garcia traveled to Sioux Falls with him and

other men who had been recruited by Camargo to collect debts owed on past sales of

marijuana and methamphetamine. A drug dealer named Kenny Clark testified that

Garcia personally confronted him over his outstanding debts and demanded that he

pay the money he owed. Mario Rodriguez, another drug dealer who owed Camargo

money for drugs, testified that Garcia was part of a group of men that beat him up,

although he was not sure that Garcia himself had actually struck him. Garcia also

accompanied Rodriguez on an extended drive to Mexico where Rodriguez’s

delinquencies were to be resolved and while in Mexico spied on another man who

owed money to Verdugo-Galaviz. Furthermore, while in Sioux Falls, a Ford

Expedition was titled in Garcia’s name, and Garcia later left the vehicle in Phoenix. 

There was substantial testimony presented that, in other instances, vehicles had been

deposited in Phoenix as payment to members of the conspiracies for drug debts. 

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Garcia admitted that he had traveled to Sioux Falls to collect debts but denied

that he had known the debts were drug-related. This contention is belied by the fact

that, while in Sioux Falls, he stayed at the Menlo Avenue house that was a key focal

point of the Sioux Falls drug network. While both Elias Lechuga and Garcia’s

brother Jesus testified that Garcia had not been aware of the drug-related nature of

their activities, they also testified that they had come to Sioux Falls specifically to

collect drug debts. It would not have been unreasonable for the jury to conclude that

both the testimony of Garcia’s innocent state of mind and Garcia’s own claims of

innocence were incredible. See United States v. Long Feather, 299 F.3d 915, 917

(8th Cir. 2002) (“[T]he jury was well within its rights to disregard [the defendant’s]

self-serving testimony in favor of the testimony of other witnesses.”).

Garcia correctly points out that previous cases in which drug dealers’ debt

collectors have been convicted for conspiring to distribute drugs have involved a

greater degree of overlap between distribution and enforcement activities. See, e.g.,

United States v. Clay, 579 F.3d 919 (8th Cir. 2009); United States v. Lopez, 443 F.3d

1026 (8th Cir. 2006) (en banc). However,“[w]e must uphold the verdict if there is an

interpretation of the evidence that would allow a reasonable-minded jury to find the

defendant guilty beyond a reasonable doubt.” United States v. Wainright, 351 F.3d

816, 822 (8th Cir. 2003). The evidence presented at trial was sufficient for a

reasonable jury to find beyond a reasonable doubt that Garcia had come to Sioux

Falls with a team of fellow enforcers specifically to collect drug debts on behalf of

the drug distribution operation, satisfying the intent and knowledge requirements of

his conspiracy convictions. See Jiminez, 487 F.3d at 1146. Therefore, we affirm his

convictions.

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2. Sentencing

The district court sentenced Garcia at the bottom of his advisory sentencing

guidelines range, 151 months’ imprisonment on each conspiracy count with the

sentences to run concurrently. “We review the reasonableness of defendants’

sentences under a deferential abuse-of-discretion standard, ensuring that the district

court committed no significant procedural error and that the sentence issubstantively

reasonable.” United States v. Reynolds, 643 F.3d 1130, 1134 (8thCir. 2011) (quoting

Gall v. United States, 552 U.S. 38, 41 (2007)). Garcia argued at sentencing for his

guidelines offense level to be reduced by four or two levels because he had been only

a “minimal” or “minor” participant in the conspiracy. See U.S.S.G. § 3B1.2. He bore

the burden of proof to show that he was entitled to such a reduction. See United

States v. Deans, 590 F.3d 907, 909 (8th Cir. 2010). The district court acknowledged

Garcia’s argument that his involvement with the conspiracy had not lasted long and

that he had known less about the full extent of the conspiracy than others, but the

court nevertheless found that the role he played had not been minor or minimal. 

Explaining its decision, the district court stated that “coming up here from Mexico

specifically to collect drug debt . . . means that even though your involvement is

limited time wise, you are playing not only a major role but a particularly offensive

role.” “We review for clear error a district court’s finding as to a defendant’s role in

the offense under section 3B1.2.” United States v. Sweeney, 611 F.3d 459, 476 (8th

Cir. 2010). Given the evidence presented at trial and Garcia’s role in the conspiracy,

“the trial court’s finding does not leave us with a ‘definite and firm conviction that

a mistake has been committed.’” United States v. Ortiz, 236 F.3d 420, 422 (8th Cir.

2001) (quoting United States v. Westerman, 973 F.2d 1422, 1428 (8th Cir. 1992)). 

We therefore do not find clear error in the district court’s decision to deny Garcia

minimal or minor participant status under § 3B1.2.

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Garcia also argues that his sentence was substantively unreasonable in light of

the sentencing factors in 18 U.S.C. § 3553(a). When assessing substantive

reasonableness, we consider the totality of the circumstances at sentencing, and we

review for abuse of discretion only. Gall, 552 U.S. at 51. “If the sentence imposed

is within the advisory Guidelines range, this court ‘may, but is not required to, apply

a presumption of reasonableness.’” United States v. Delgado-Hernandez, 646 F.3d

562, 568 (8th Cir. 2011) (per curiam) (quoting Gall, 552 U.S. at 51). “A sentence is

substantively unreasonable if the district 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.” Id. (quoting United States v. Lozoya, 623

F.3d 624, 626 (8th Cir. 2010)). 

Garcia contends that a number of his co-conspirators, many of whom played

very significant roles in the organization, received less severe sentences. He

mentions in particular Kenny Clark, Mario Rodriguez, Elias Lechuga, and Jesus

Echeverria-Pineda. All of these men, though, pled guilty, cooperated with the

investigation, and testified for the Government at trial. They are thus not truly

similarly situated to Garcia within the meaning of 18 U.S.C. § 3553(a)(6). See United

States v. Bowie, 618 F.3d 802, 819 (8th Cir. 2010), cert. denied, 562 U.S. ---, 131 S.

Ct. 954 (2011). Garcia also contends that his lack of a prior criminal history, and

what he argues is a resultant lack of a need to protect the public from potential future

crimes, militated in favor of a lesser sentence. The sentencing court considered this

factor, though, and it cited his clean record, his youth, and his “potential” as the

reasons for pronouncing a sentence at the low end of the guidelines range. Overall,

it is clear from the transcript of the sentencing hearing that the district court

considered the § 3553(a) factors as required, and Garcia points to no basis for us to

find an abuse of discretion within the meaning of Gall. Accordingly, we affirm his

presumptively reasonable guidelines sentence.

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C. Burgos-Valdez

1. Evidentiary Sufficiency

Burgos-Valdez was convicted at trial of conspiring to distribute

methamphetamine in violation of 21 U.S.C. § 846. On appeal, he argues that the

evidence presented against him was legally insufficient to support his conviction “in

light of the incredible testimony [of the Government’s] witnesses and [the] lack of

physical evidence tying [him] to the conspiracy.” Burgos-Valdez was a passenger in

a vehicle that was pulled over by police for a routine traffic stop. Police found three

kilograms of methamphetamine in the center console of the vehicle. The driver of the

vehicle, Jorge Salgado, pled guilty to the charges against him, cooperated with the

government, and testified at trial. Salgado testified that Burgos-Valdez had been

involved in acquiring methamphetamine in Phoenix for Dario Verdugo-Galaviz and

that Burgos-Valdez had packed the methamphetamine into the vehicle in which they

were caught. If credited by the jury, Salgado’s testimony alone was sufficient to

sustain Burgos-Valdez’s conviction. See Bowie, 618 F.3d at 814 (holding that even

the wholly uncorroborated testimony of an accomplice is sufficient to sustain a

conviction absent facial incredibility or insubstantiality). Because a jury’s

determinations of witness credibility are “virtually unreviewable on appeal,” Boyce,

564 F.3d at 916, and because we must construe the evidence presented “in the light

most favorable to the government, resolving conflicts in the government’s favor, and

accepting all reasonable inferencesthatsupport the verdict,” Yarrington, 634 F.3d at

449, Burgos-Valdez’s insufficiency claim fails, and we affirm his conviction.

2. Sentencing

The district court sentenced Burgos-Valdez to 240 months’ imprisonment.

Burgos-Valdez argues that his below-guidelines-range sentence was substantively

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unreasonable because of disparities between his sentence and that of Jorge Salgado,

who Burgos-Valdez claims was a similarly situated defendant. The district court

specified proper reasons for its disparate treatment of Burgos-Valdez and Salgado,

including the fact that Salgado pled guilty and its finding that Salgado was a minor

participant while Burgos-Valdez was not. See Bowie, 618 F.3d at 819; U.S.S.G.

§ 3B1.2. Burgos-Valdez also asserts that the district court did not properly explain

his sentence, asrequired by 18 U.S.C. § 3553(c). While Burgos-Valdez is correct that

the court did not engage in an expansive recitation of the § 3553(a) factors, it was not

required to do so. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009)

(en banc). In this case, the record is sufficient to allow for meaningful review, see

Gall, 552 U.S. at 50, and itshowsthat the § 3553(a) factors were considered properly,

see United States v. Brown, 627 F.3d 1068, 1073-74 (8th Cir. 2010), cert. denied, 562

U.S. ---, 132 S. Ct. 274 (2011). Therefore, we do not find an abuse of discretion in

the district court’s sentencing of Burgos-Valdez, and we affirm his sentence.

D. Melendez-Rocha

1. New trial

At the outset of the trial in response to a motion in limine, the district court

ordered that no mention be made of Melendez-Rocha’s immigration status. During

voir dire and again during his closing argument, co-defendant Michelle Munoz’s

counsel alluded to the fact that all of the defendants other than Munoz were not

citizens. Both of these instances prompted Melendez-Rocha to move for a mistrial. 

The district court refused to declare a mistrial but did issue a curative jury instruction. 

We review its decision to deny the request for a new trial for abuse of discretion. 

United States v. Brandon, 521 F.3d 1019, 1026 (8th Cir. 2008).

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“We give the district court ‘broad discretion to grant or deny a motion for

mistrial because it is in a far better position to weigh the effect’ of any possible

prejudice.” United States v. Urqhart, 469 F.3d 745, 749 (8th Cir. 2006) (quoting

United States v. Davidson, 122 F.3d 531, 538 (8th Cir. 1997)). “[L]ess drastic

measures such as a cautionary instruction are generally sufficient to alleviate

prejudice.” Davidson, 122 F.3d at 538. When such an instruction is given, we must

“determine whether the verdict was ‘substantially swayed’ by the prejudicial

comment.” United States v. Urick, 431 F.3d 300, 304 (8th Cir. 2005) (quoting United

States v. Coleman, 349 F.3d 1077, 1087 (8th Cir. 2003)). “In making this

determination, we must evaluate whether a curative instruction was sufficient in the

context of the entire trial, and weigh the prejudice against the strength of the

government’s evidence.” Id. “This court will affirma conviction . . . where there was

‘substantial evidence’ of guilt.” Id. (quoting Coleman, 349 F.3d at 1087). 

The evidence of Melendez-Rocha’s guilt was substantial. Maria Rojas, who

worked as a driver and assistant for Dario Verdugo-Galaviz, testified that she

delivered money and a Mercedes-Benz automobile to Melendez-Rocha on VerdugoGalaviz’s behalf as payment for methamphetamine. She further testified thatshe and

Melendez-Rocha discussed his drug distribution business extensively. Later, Rojas

offered to distribute drugs for Melendez-Rocha, but he told her that his business was

not doing very well and declined her offer. Rojas also testified that on VerdugoGalaviz’s ordersshe deposited money owed to Melendez-Rocha for drugs into a bank

account. Sergio Munoz testified that he transported methamphetamine from

Melendez-Rocha in Phoenix to Verdugo-Galaviz in Sioux Falls. Melendez-Rocha

dropped methamphetamine off at Munoz’s house, and then Munoz would drive it

north to Sioux Falls. Munoz testified that he delivered a boat to Melendez-Rocha as

payment for a drug debt, that he bought drugs from Melendez-Rocha at MelendezRocha’s house, and that Verdugo-Galaviz deposited money into a bank account for

Melendez-Rocha as payment for methamphetamine. Laura Welch, the mother of two

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of Melendez-Rocha’s children, gave extensive testimony about Melendez-Rocha’s

activities in the methamphetamine trade and described how large quantities of

methamphetamine were often stored at their home and in his cars and how she

withdrew money from bank accounts on his behalf. Laura’s mother, Kerri Welch,

testified that she set up a bank account on Melendez-Rocha’s behalf and would

withdraw money for him as it was deposited by others. Because there was

“substantial evidence” of Melendez-Rocha’s guilt, Coleman, 349 F.3d at 1087, the

verdict was not “‘substantially swayed’ by the prejudicial comment,” Urick, 431 F.3d

at 304 (quoting Coleman, 349 F.3d at 1087), and therefore the curative instruction

given was “sufficient in the context of the entire trial” to alleviate any prejudice that

may have resulted from the reference to Melendez-Rocha’s immigration status. See

Urick, 431 F.3d at 304.

2. Sentencing

The district court sentenced Melendez-Rocha to 348 months’ imprisonment,

varying below his advisory sentencing guidelines range to do so. “[W]here a district

court has sentenced a defendant below the advisory guidelines range, ‘it is nearly

inconceivable that the court abused its discretion.’” United States v. Moore, 581 F.3d

681, 684 (8th Cir. 2009) (quoting United States v. Lazarski, 560 F.3d 731, 733 (8th

Cir. 2009)). Melendez-Rocha argues that his sentence is substantively unreasonable

because the district court failed to consider his age, family situation, or educational

status as required by § 3553(a) and that “[h]e is a non-violent drug offender, and 348

months is simply too much time in light of his offense.” 

We do not require a mechanical recitation of the § 3553(a) factors at

sentencing. Feemster, 572 F.3d at 461. Instead, “it simply must be clear from the

record that the district court actually considered the § 3553(a) factors in determining

the sentence.” United States v. Walking Eagle, 553 F.3d 654, 659 (8th Cir. 2009)

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(quoting United States v. Little Hawk, 449 F.3d 837, 840 (8th Cir. 2006)). Although

it did not mechanically list each of these factors, the district court stated that it had

considered the § 3553(a) factors in reaching its sentencing decision. The district

court also received and read a number of letters from supporters of Melendez-Rocha,

and recognized Melendez-Rocha’s non-criminal business activities and the lawabiding character of his family, and heard extensive argument from MelendezRocha’s counsel. “[W]here the district court heard argument from counsel about

specific § 3553(a) factors, we may presume that the court considered those factors.” 

United States v. Keating, 579 F.3d 891, 893 (8th Cir. 2009). 

We find no procedural error on the part of the district court, and MelendezRocha has not shown that the district court failed to consider the § 3553(a) factors in

determining his below-guidelines-range sentence orthat hissentence wasin any other

way substantively unreasonable. We therefore find no abuse of discretion in

Melendez-Rocha’s sentence.

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court.

______________________________

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