United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-2347

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United States of America, *

*

Plaintiff – Appellee, *

* Appeal from the United States

v. * District Court for the Western

* District of Missouri.

Donaciano Alvizo-Trujillo, also known *

as Donaciano Alvizo, *

*

Defendant – Appellant. *

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Submitted: February 14, 2008

 Filed: March 31, 2008

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Before MELLOY, GRUENDER, and SHEPHERD, Circuit Judges.

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MELLOY, Circuit Judge.

Donaciano Alvizo-Trujillo pled guilty to illegal re-entry into the United States

in violation of 8 U.S.C. § 1326(a). His applicable Guidelines range was forty-six to

fifty-seven months of imprisonment. The district court sentenced Alvizo-Trujillo to

forty-six months of imprisonment. Alvizo-Trujillo appeals, arguing that the district

court improperly applied a presumption of reasonableness to the Guidelines range in

violation of Rita v. United States, 127 S. Ct. 2456 (2007).
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I.

At the sentencing hearing, Alvizo-Trujillo asked the district court to vary

downward from the applicable Guidelines range based upon the 18 U.S.C. § 3553(a)

factors. Alvizo-Trujillo argued generally that the Guidelines unduly emphasize the

objectives of deterrence and incapacitation over the other § 3553(a) factors. Counsel

stated, “we believe the range as stated is unreasonably high.”

After the government’s comments, the district court stated that “[t]he guideline

range is presumptively a reasonable range. At least, until the Supreme Court says

otherwise, that’s the extant law of this Circuit.” The district court stated that it was

required to consider the § 3553(a) factors, including the imposition of a sentence

sufficient but not greater than necessary, and commenced its analysis. The district

court was troubled by Alvizo-Trujillo’s criminal history, which included kidnaping

and attempted rape convictions. The district court also emphasized the need to protect

the public from further crimes by Alvizo-Trujillo. The district court stated that this

case was a typical illegal re-entry case and also stated that the sentence should reflect

the seriousness of the offense, promote respect for the law, provide just punishment,

deter criminal conduct, and avoid unwarranted sentence disparities. The district court

then declared: “Considering all of the factors then in 18 USC § 3553, I conclude that

a sentence within the guideline range is a reasonable sentence.” The district court

sentenced Alvizo-Trujillo to forty-six months, the low end of the applicable

Guidelines range.

The district court asked Alvizo-Trujillo’s counsel if there was anything else,

and counsel stated no. 
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II.

In our review of this sentencing, we “first ensure that the district court

committed no significant procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to

consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts,

or failing to adequately explain the chosen sentence—including an explanation for any

deviation from the Guidelines range.” Gall v. United States, 128 S. Ct. 586, 597

(2007). If the decision was “procedurally sound,” we then review the “substantive

reasonableness of the sentence” under the abuse-of-discretion standard considering

the totality of the circumstances. Id.

Appellate courts may apply a presumption of reasonableness to a sentence

within the Guidelines. Rita, 127 S. Ct. at 2465. But, district courts “may not presume

that the Guidelines range is reasonable.” Gall, 128 S. Ct. at 596-97; Rita, 127 S. Ct.

at 2465 (stating that “the sentencing court does not enjoy the benefit of a legal

presumption that the Guidelines sentence should apply”). In light of Rita, the district

court’s application of a presumption of reasonableness to the Guidelines range was “a

significant procedural error.” United States v. Greene, 513 F.3d 904, 907 (8th Cir.

2008) (citing Gall, 128 S. Ct. at 597). 

Alvizo-Trujillo failed to object to the district court’s presumption that the

Guidelines were reasonable, both at the time the district court stated the presumption

and after the district court sentenced him. “Procedural sentencing errors are forfeited,

and therefore may be reviewed only for plain error, if the defendant fails to object in

the district court.” United States v. Burnette, No. 07-1476, 2008 WL 637609, at *3

(8th Cir. Mar. 11, 2008). Alvizo-Trujillo argues that he objected to the presumption

by his general statement that the Guidelines range was unreasonably high. But that

statement was merely commentary and was made before the district court announced

the improper presumption and the sentence. Plain error therefore applies. United
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States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc) (“To preserve an error

for appellate review, an objection must be timely and must clearly state the grounds

for the objection.”) (internal quotation and alteration omitted).

Under plain error review, the defendant must prove an error that is plain and

that affects the defendant’s substantial rights. Id. at 550. If those conditions are met,

we may correct the error “only if . . . the error seriously affects the fairness, integrity,

or public reputation of judicial proceedings.” Id. The error in this case was plain.

Burnette, 2008 WL 637609, at *4; see Johnson v. United States, 520 U.S. 461, 468

(1997) (stating that “where the law at the time of trial was settled and clearly contrary

to the law at the time of appeal—it is enough that an error be ‘plain’ at the time of

appellate consideration”). 

The error, however, did not affect Alvizo-Trujillo’s substantial rights. To affect

substantial rights, the error generally must be prejudicial. United States v. Olano, 507

U.S. 725, 735 (1993). “[A]n error is prejudicial if there is a reasonable probability the

defendant would have received a lighter sentence but for the error.” Burnette, 2008

WL 637609, at *4. In this case, the district court imposed the sentence not as a result

of its improper presumption, “but as a result of the district court’s assessment of the

relevant factors and determination of the minimally adequate sentence, as required by

§ 3553(a).” Greene, 513 F.3d at 907-08. The district court considered AlvizoTrujillo’s criminal history and the need for the sentence imposed to reflect the

seriousness of the offense, to promote respect for the law, to provide just punishment,

to deter criminal conduct, to protect the public from further crimes, and to avoid

unwarranted sentence disparities. The district court “set forth enough to satisfy the

appellate court that [the district court] has considered the parties’ arguments and has

a reasoned basis for exercising [its] own legal decisionmaking authority.” Rita, 127

S. Ct. at 2468. Alvizo-Trujillo does not point to any evidence that the district court
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was inclined to impose a lighter sentence. Alvizo-Trujillo suffered no prejudice from

the error. 

III.

We affirm the judgment of the district court.

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