1

The Honorable Raymond C. Clevenger, III, Senior United States Circuit Judge,

sitting by designation.

2

The Honorable David S. Doty, United States District Judge for the District of

Minnesota. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

__________

No. 10-3789

__________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Roberto Villarreal-Colin, *

* [UNPUBLISHED]

 Appellant. *

___________

Submitted: June 13, 2011

 Filed: September 6, 2011

___________

Before COLLOTON, CLEVENGER1

 and BENTON, Circuit Judges.

___________

PER CURIAM.

 Roberto Villarreal-Colin pled guilty to illegal reentry in violation of 8 U.S.C.

§§ 1326 (a), (b)(2) and 6 U.S.C. §§ 202, 557. The district court2

 sentenced him to 57

months’ imprisonment and three years’ supervised release. He appeals the sentence
-2-

as substantively unreasonable. Having jurisdiction under 28 U.S.C. § 1291, this court

affirms.

As an adult, Villarreal-Colin illegally entered the United States from Mexico

in the 1970s. In 1979, he was convicted of third-degree burglary. Since then, he has

been removed from the United States five times, most recently in 2006. Over the

years, Villarreal-Colin has three convictions for driving while intoxicated, three for

possession of drugs, and one each for false representation regarding unemployment

benefits, blood alcohol concentration over .10, and illegal entry. On June 9, 2010, he

was arrested for theft/wrongfully obtaining unemployment compensation. 

After pleading guilty here, Villarreal-Colin conceded at sentencing that the

guideline range of 57 to 71 months was proper, but requested no more than 40 months

as sufficient but not greater than necessary to accomplish the sentencing goals. The

district court considered the presentence investigation (PSR), heard argument, and

sentenced him to 57 months–the low end of the range. 
3

In his brief, Villarreal-Colin criticizes the district court for analyzing his case

through the “lens of a formal request for a downward departure” and “the dated and

limited lens of a formal departure consideration.” At sentencing, he presented his case

as a motion for departure, beginning his argument by saying he had made “a motion

for a variance for departure,” and next arguing that cultural assimilation was an

appropriate reason to “depart or vary.” 

In ruling, the court began by noting that defendant has “moved for a downward

departure.” The court saw its function as determining “whether a departure is

appropriate.” The court concluded:

Considering all of the relevant factors and in view of

the probation officer’s recommendation and whether that’s

correct or not, I still believe that a departure is not

warranted. Therefore, the defendant’s motion will be

denied. 

The defendant did not object to the court’s treating his motion as one for departure.

Because the court recognized its authority to depart, the discretionary denial of a

motion to depart would not be reviewable on appeal. See United States v. Underwood,

639 F.3d 1111, 1113 (8th Cir. 2011).

-3-

Villarreal-Colin argues on appeal that the sentence imposed was unreasonable.3

This court reviews sentencing decisions to determine if they are reasonable under a

deferential abuse-of-discretion standard. United States v. Battiest, 553 F.3d 1132,

1135 (8th Cir. 2009). Villarreal-Colin does not allege procedural error, so review is

to determine if the sentence is substantively unreasonable. United States v. BolivarDiaz, 594 F.3d 1003, 1005 (8th Cir. 2010). An abuse of discretion occurs if the

sentencing court failed to consider a relevant factor, “gives significant weight to an

irrelevant or improper factor, or considers the appropriate factors but commits clear

error of judgment in weighing those factors.” United States v. Asalati, 615 F.3d 1001,

1006 (8th Cir. 2010). 
-4-

Villarreal-Colin objects to the weight that the district court gave to the

sentencing guidelines and sentencing factors. A sentence is not unreasonable solely

because the sentencing court elected to follow the guidelines (so long as it does not

treat them as mandatory). See United States v. Koch, 625 F.3d 470, 481 (8th Cir.

2010) citing United States v. O’Connor, 567 F.3d 395, 397 (8th Cir. 2009). 

As for the sentencing factors, Villarreal-Colin admits the court considered his

request for a lesser sentence based on cultural assimilation, but asserts the court did

not “seemingly” consider other factors that support a variance –his strong ties to the

United States (including two U.S.-citizen adult children here), minimal ties to Mexico,

the age of his aggravated felony, his age, and his health. The district court’s

sentencing colloquy shows it considered the § 3553(a) factors and those that

Villarreal-Colin offered. The court’s reference to certain factors does not show it

failed to consider others. See United States v. Williams, 599 F.3d 831, 833 (8th Cir.

2010). The district court has wide discretion in weighing the §3553(a) factors and

may assign some factors greater weight than others in imposing an appropriate

sentence. United States v. San-Miguel, 634 F.3d 471, 476 (8th Cir. 2011). A district

court is not required to provide a “mechanical recitation” of the §§ 3553(a) factors,

so long as it actually considered them. United States v. Walking Eagle, 553 F.3d 654,

659 (8th Cir. 2009). 

Villareal-Colin’s sentence came within the guideline range, and is

presumptively reasonable. See United States v. Struzik, 572 F.3d 484, 488 (8th Cir.

2009). It is an unusual case when a within-guidelines sentence is reversed. United

States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc). 
-5-

The district court did not err in sentencing Villarreal-Colin to the low end of the

guideline range.

* * * * * * * *

The judgment of the district court is affirmed.

_____________________________