United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-3666

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United States of America, *

*

Plaintiff - Appellee, * Appeal from the United States

* District Court for the

v. * District of Minnesota.

*

Juan Rivera-Vargas, * [UNPUBLISHED]

*

Defendant - Appellant. *

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Submitted: June 16, 2011

Filed: October 6, 2011

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Before LOKEN, BEAM, and GRUENDER, Circuit Judges.

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PER CURIAM.

Juan Rivera-Vargas, a citizen of Mexico, was arrested and removed from the

United States in 1993, after pleading guilty to selling marijuana, and again in 1996,

after being convicted of selling cocaine, an aggravated felony. He illegally reentered

again and in March 2010 was arrested and charged in state court with a drug offense

after a warrant search uncovered methamphetamine and a firearm. He then pleaded

guilty to the federal offense here at issue, illegal reentry after removal in violation of

8 U.S.C. § 1326 and 6 U.S.C. §§ 202 and 557. The plea agreement included

sentencing stipulations projecting that the advisory guidelines sentencing range would

be either 41 to 51 months or 46 to 57 months in prison, depending upon the district

court’s determination of Rivera-Vargas’s criminal history category.
1

The Honorable Michael J. Davis, Chief Judge of the United States District

Court for the District of Minnesota.

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Prior to sentencing, Rivera-Vargas submitted a Position Pleading arguing that

he should be sentenced to 13 months in prison because of his advanced age,

impoverished upbringing, lack of education, "stale" criminal history, large immediate

family, and acceptance of responsibility. The government filed a pleading urging a

sentence within the advisory guidelines range. At sentencing, defense counsel argued

for a 13-month sentence because Rivera-Vargas only returned to the United States to

be with his family and to escape “growing violence” in Mexico. Counsel explained

that Rivera-Vargas had pleaded guilty to the state court drug charges and anticipated

a 48-month sentence but urged the court to ignore those charges. The Government,

on the other hand, argued that the prior drug convictions and pending drug charges

were highly relevant and urged the court to impose a within-range sentence. 

The district court1

 first determined without objection that the advisory range

was 41 to 51 months in prison, as calculated in the Presentence Investigation Report

(PSR). After noting that it had considered the PSR, relevant sentencing precedents,

and the 18 U.S.C. § 3553(a) sentencing factors, the court sentenced Rivera-Vargas to

51 months in prison, the top of that range. The court made the sentence concurrent

with any sentence the state court may impose "so he gets a free pass on the drug

charges unless the judge [in Ramsey County] sentences him to more than 51 months."

On appeal, Rivera-Vargas argues that the district court imposed a substantively

unreasonable sentence because it “committed a clear error in judgment in weighing

the appropriate § 3553(a) factors cited in his position paper.” We review the court’s

sentencing decision for abuse of discretion, taking into account the totality of the

circumstances. Gall v. United States, 552 U.S. 38, 51 (2007). Our review of the

court’s weighing of the § 3553(a) factors is narrow and deferential. "[I]t will be the

unusual case when we reverse a district court sentence -- whether within, above, or
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below the applicable Guidelines range -- as substantively unreasonable." United

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

Here, Rivera-Vargas repeatedly entered this country illegally and committed

drug trafficking offenses, which weighs heavily against his contention that a belowguidelines-range sentence was sufficient to reflect the seriousness of his offense,

afford adequate deterrence, and protect the public from future crimes. The district

court was not required to offset these factors by giving greater weight to his age,

family relationships, and impoverished childhood in Mexico. "A district court's

choice to assign relatively greater weight to the nature and circumstances of the

offense than to the mitigating personal characteristics of the defendant is well within

its wide latitude in weighing relevant factors." United States v. Farmer, 647 F.3d

1175, 1179-80 (8th Cir. 2011). 

Having carefully considered the totality of the circumstances, we have no

difficulty concluding that the district court did not abuse its substantial sentencing

discretion. Accordingly, the judgment of the district court is affirmed.

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