United States v. A. Garduno-Gonzalez

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2540
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Alejandro Garduno-Gonzalez, *
* [UNPUBLISHED]
Appellant. *
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Submitted: May 24, 2007
Filed: May 29, 2007
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Before WOLLMAN, MURPHY, and BYE, Circuit Judges.
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PER CURIAM.
Alejandro Garduno-Gonzalez pleaded guilty to illegal reentry into the United
States after deportation subsequent to an aggravated felony conviction, in violation
of 8 U.S.C. § 1326. Having calculated a Guidelines imprisonment range of 46-57
months, the district court1 sentenced him to 46 months. He appeals, contending his
sentence is unreasonable. We disagree. See United States v. Booker, 543 U.S. 220,
261-62 (2005) (appellate court reviews sentence to determine whether it is
1
The Honorable Carol E. Jackson, Chief Judge, United States District Court for
the Eastern District of Missouri.
unreasonable in light of 18 U.S.C. § 3553(a) factors); United States v. Mathis, 451
F.3d 939, 941 (8th Cir. 2006) (reasonableness review is akin to abuse-of-discretion
review).
The record does not support Garduno-Gonzalez’s argument that the district
court either misapprehended the advisory nature of the Guidelines or applied an
excessively stringent standard to his request for a non-Guidelines sentence. At
sentencing, the court properly considered the applicable Guidelines range, the nature
of the offense, the defendant’s history and his proffered reasons for returning to the
United States, as well as sentencing objectives, and determined that a sentence within
the Guidelines range was reasonable under the circumstances. See United States v.
Hawk Wing, 433 F.3d 622, 631 (8th Cir. 2006) (sentencing involves three-step
process of calculating Guidelines range, determining if Guidelines departure is
warranted, and considering § 3553(a) factors to decide whether to impose Guidelines
sentence or non-Guidelines sentence). The Guidelines use of a prior felony conviction
to increase both the offense level and the criminal history category was not
impermissible double counting, see United States v. Dyck, 334 F.3d 736, 740 (8th Cir.
2003), and did not warrant special treatment in the court’s section 3553(a) analysis.
We also reject Garduno-Gonzalez’s sentence-disparity argument. See United States
v. Batchelder, 442 U.S. 114, 123-24 (1979) (government is free to exercise
non-discriminatory prosecutorial discretion to select statute under which to charge
defendant); United States v. Sebastian, 436 F.3d. 913, 916 (8th Cir. 2006)
(recognizing both Congress’s policymaking power and Attorney General’s
prosecutorial discretion, and stating it is within province of “policymaking branches
of government to determine that certain disparities are warranted, and thus need not
be avoided”). Accordingly, the judgment of the district court is affirmed.
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