## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 09-3869

___________ United States of America, * * Appellee, * Appeal from the United * States District Court for v. * the District of South Dakota. * Pablo Mireles-Martinez, * [UNPUBLISHED] * Appellant. *

___________ Submitted: October 21, 2010 Filed: October 27, 2010

___________ Before MURPHY, BEAM, and BENTON, Circuit Judges.

___________ 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 court 1 arrived at an 84-month sentence. Mireles- Martinez appeals, claiming that because he will be deported immediately following hi s 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 Stat es from Mexico in 1990. Since that time he has been deported on four occas ions and has committe d 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 dete rmined Mireles-Martinez's illegal reentry/immigration status and the instan t charges ensued. Mireles-Martinez pled guilty to the Illegal Reentry After Deportation charge. At sentencing on the immigration ch arge, 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 atte mpted arson, multiple arrests for battery and/or assault, several DUIs, vehicle thef ts, and public indecency. The biggest factor affecting the length of Mireles-Martinez' s sentence was a 16-le vel 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 ars on, a felony crime of violence. This brought his total offense level to 21, with a corresponding Gu idelines range of 77 to 96 months. The court specifically stated thatthere 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 be havior. The court emphasized that "[t]he defendant . . . is a dangerous person, notthe kind of person that should be coming

-2-back to the United States, and that is oneof 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 l onger than necessary to accomplish the need to protect the public from further crimes. "We review the substantive reasonableness of a sentence for abuse of discre tion." 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 St ates because he will be deported upon his release from custody." Mireles-Martinez cont ends that this statement by the district court proves that his 84-month sentence is great er 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 f act 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 se ntence, 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, na turalization and passports, section 2L1.2(b)(1)(A)(ii) states that "[i]f th e 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 leve l] by 16 levels." Accordingly, the instant
-3-situation is specifically contemplated by the Guidelines, which fully recognize that these defendants may be deported upon release, and still s uggest 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 su fficient, 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 pos t-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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