United States v. Cesar Ortiz-Castillo , 467 F. App'x 546 ( 2012 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-2735
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Cesar Ortiz-Castillo, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: May 14, 2012
Filed: June 26, 2012
___________
Before WOLLMAN, BEAM, and LOKEN, Circuit Judges.
___________
PER CURIAM.
Cesar Ortiz-Castillo pled guilty to illegal reentry after removal in violation of
6 U.S.C. §§ 202 and 557 and 8 U.S.C. § 1326(a) and (b)(2). At sentencing, Ortiz-
Castillo sought a variance from the suggested 70 to 87 months Guidelines range,
positing to the court that a 36-month sentence was reasonable. The district court1
imposed a 70-month sentence. On appeal, Ortiz-Castillo challenges the
reasonableness of his sentence, claiming that the district court failed to give sufficient
mitigating weight to particular factors indicating an unlikelihood of reoffending and
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
that, as such, the resulting sentence was greater than necessary to accomplish the goals
of 18 U.S.C. § 3553(a).
There was no abuse of discretion here. United States v. Clay, 622 F.3d 892,
895 (8th Cir. 2010) (standard of review), cert. denied, 131 S. Ct. 3023 (2011). Ortiz-
Castillo argues that his sentence was substantively unreasonable because, while he had
been convicted of several prior offenses, he was never sentenced to more than four
months in custody. Thus, Ortiz-Castillo argued to the district court and again on
appeal that a 36-month sentence more reasonably reflects a gradation from his prior
offenses and would sufficiently deter him in accordance with the § 3553(a) concerns
regarding recidivism and deterrence. Although the district court, in its discretion,
could have granted the downward variance sought by Ortiz-Castillo, see Kimbrough
v. United States, 552 U.S. 85, 110-11 (2007), it was not required to do so. See United
States v. Cosey, 602 F.3d 943, 946 (8th Cir.), cert. denied, 131 S. Ct. 364 (2010). The
record indicates that the district court considered Ortiz-Castillo's variance request
along with each of the relevant § 3553(a) sentencing factors. Ortiz-Castillo raises
nothing on appeal to rebut the presumption of reasonableness to which his sentence
is entitled. See Clay, 622 F.3d at 895 ("When a sentence is within the advisory
guideline sentencing range, we may presume the sentence is reasonable."). The
district court did not abuse its discretion in imposing this 70-month sentence.
The judgment of the district court is affirmed.
______________________________
-2-