United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-3869

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United States of America, *

*

Appellee, * Appeal from the United 

* States District Court for 

v. * the District of South Dakota.

*

Pablo Mireles-Martinez, * [UNPUBLISHED]

*

Appellant. *

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Submitted: October 21, 2010

Filed: October 27, 2010

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Before MURPHY, BEAM, and BENTON, Circuit Judges.

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PER CURIAM.

Pablo Mireles-Martinez pled guilty to the charge of Illegal Reentry After

Deportation, in violation of 8 U.S.C. § 1326(a). The suggested U.S. Sentencing

Guidelines Manual (U.S.S.G.) range was 77 to 96 months and the district court1

arrived at an 84-month sentence. Mireles-Martinez appeals, claiming that because he

will be deported immediately following his release, anything over the 30-month

sentence he suggested was greater than necessary and contravenes the express

1

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

District of South Dakota.
sentencing limitation set forth in 18 U.S.C. § 3553(a). We disagree and affirm the

district court.

I. BACKGROUND

Mireles-Martinez came to the United States from Mexico in 1990. Since that

time he has been deported on four occasions and has committed numerous crimes. 

Relevant to the instant case, on June 3, 2008, Mireles-Martinez was arrested in Deuel

County, South Dakota, and charged with driving under the influence third offense

(DUI) and impersonation to deceive a law enforcement officer. He was sentenced

following conviction to two years' imprisonment. An Immigration and Customs

Enforcement (ICE) agent then determined Mireles-Martinez's illegal

reentry/immigration status and the instant charges ensued. Mireles-Martinez pled

guilty to the Illegal Reentry After Deportation charge. 

At sentencing on the immigration charge, Mireles-Martinez requested a

downward variance to a 30-month sentence based upon his view that the resulting

suggested range of 77 to 96 months was "draconian." Mireles-Martinez has an

extensive criminal record, including attempted arson, multiple arrests for battery

and/or assault, several DUIs, vehicle thefts, and public indecency. The biggest factor

affecting the length of Mireles-Martinez's sentence was a 16-level enhancement that

was applied pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) because Mireles-Martinez

committed his "illegal reentry subsequent to deportation" after being convicted in

October 1996 for attempted arson, a felony crime of violence. This brought his total

offense level to 21, with a corresponding Guidelines range of 77 to 96 months. The

court specifically stated that there was no reason to depart or vary and discussed the

§ 3553(a) factors, highlighting the need to protect the public from further crimes given

Mireles-Martinez's volatile past criminal behavior. The court emphasized that "[t]he

defendant . . . is a dangerous person, not the kind of person that should be coming

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back to the United States, and that is one of the reasons that this enhancement

probably is there." The court imposed an 84-month sentence. 

II. DISCUSSION

Mireles-Martinez only challenges the substantive reasonableness of his sentence

on appeal, claiming that the sentence is longer than necessary to accomplish the need

to protect the public from further crimes. "We review the substantive reasonableness

of a sentence for abuse of discretion." United States v. Shuler, 598 F.3d 444, 447 (8th

Cir.), cert. denied by Fiorella v. United States, 130 S. Ct. 3436 (2010). 

At sentencing, the court stated that Mireles-Martinez "pose[d a] low risk of

future substance abuse in the United States because he will be deported upon his

release from custody." Mireles-Martinez contends that this statement by the district

court proves that his 84-month sentence is greater than necessary because his postincarceration deportation should have likewise weighed heavily in his favor when the

court considered the need to protect the public. Yet the fact that the court determined

Mireles-Martinez was at low risk of future substance abuse is a separate consideration

from whether he may commit crimes that harm the public, especially given the

likelihood that he will follow his past practice of almost immediately illegally

reentering the United States. The district court did not abuse its discretion in its

careful consideration of these distinct factors. 

As to the length of the imposed sentence, the Guidelines themselves

contemplate Mireles-Martinez's alien status and criminal history, and prompt the 16-

level enhancement in this case. In the section of the Guidelines that addresses

offenses involving immigration, naturalization and passports, section

2L1.2(b)(1)(A)(ii) states that "[i]f the defendant previously was deported, or

unlawfully remained in the United States, after a conviction for a felony that is a crime

of violence, increase [the base offense level] by 16 levels." Accordingly, the instant

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situation is specifically contemplated by the Guidelines, which fully recognize that

these defendants may be deported upon release, and still suggest a length of sentence

much longer than Mireles-Martinez's proposed 30 months. 

 The district court conducted a thorough analysis and arrived at a Guidelines

sentence that was mid-range, which we may presume is reasonable on appeal. United

States v. McCraney, 612 F.3d 1057, 1068 (8th Cir. 2010). It is clear that the

sentencing judge rested his decision on the Sentencing Commission's own reasoning

that the advisory Guidelines sentence is sufficient, but not greater than necessary, to

satisfy the purposes of § 3553(a) for the typical offender under these circumstances. 

The likelihood of deportation upon release is not among the sentencing factors set out

in § 3553(a). United States v. Molina, 563 F.3d 676, 678 (8th Cir. 2009). And, even

though Mireles-Martinez's post-incarceration deportation could be a factor considered

by the district court when contemplating a variance, just as any factor could, it did not

influence the court in this case. 

III. CONCLUSION

The district court did not abuse its discretion in the imposition of the 84-month

sentence. 

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