                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 10-1355
                                     ___________

United States of America,                *
                                         *
             Plaintiff - Appellee,       *
                                         *   Appeal from the United States
      v.                                 *   District Court for the
                                         *   District of South Dakota.
Rodolfo Ernesto Rodriguez-Magallon,      *
                                         *   [UNPUBLISHED]
            Defendant - Appellant.       *

                                     ___________

                             Submitted: October 18, 2010
                                Filed: October 21, 2010
                                 ___________

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

PER CURIAM.

       Rodolfo Rodriguez-Magallon pled guilty to a charge of reentering the United
States illegally after removal, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). The
district court1 sentenced him to 77 months which was at the bottom of his advisory
guideline range. Rodriguez-Magallon appeals, arguing that the court abused its
discretion in declining to vary downward from the guideline range. We affirm.



      1
        The Honorable Karen E. Schreier, Chief Judge, United States District Court
for the District of South Dakota.
       Rodriguez-Magallon, a native and citizen of Mexico, migrated to the United
States with his parents and siblings in 1985. He married a United States citizen in
1997 and became a lawful permanent resident in 2004. In 2007 he was charged in
Washington state with second degree robbery and third degree aggravated assault, and
he pled guilty to those charges under North Carolina v. Alford, 400 U.S. 25, 37
(1970).

       Rodriguez-Magallon lost lawful resident status as a result of these convictions,
and he was deported to Mexico upon his release from prison in December 2008. He
reentered the United States shortly thereafter and later was arrested in South Dakota
on August 7, 2009 while attempting to use his former permanent resident alien card
and social security card to obtain a driver license. He pled guilty to illegal reentry
after deportation.

      The presentence investigation report (PSR) assigned an offense level of 21,
including a 16 level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because
Rodriguez-Magallon had illegally reentered the country after having been deported
subsequent to his conviction for a crime of violence (the second degree robbery
conviction). That conviction also contributed 2 criminal history points under U.S.S.G.
§ 4A1.1(b). With a criminal history category VI, his guideline range was 77 to 96
months.

       While Rodriguez-Magallon agreed with the guideline calculations in the PSR
at the sentencing hearing, he moved for either a downward departure under U.S.S.G.
§ 5K2.0 or a variance resulting in a sentencing range of 24 to 30 months. He
contended that he had pled guilty to the state robbery and assault charges only because
he had wanted to hasten his return to his family. He also argued that his criminal
behavior had largely ceased after his marriage and the birth of a son with Down's
syndrome.

      The district court adopted the guideline calculations in the PSR. It rejected the
claim that Rodriguez-Magallon had reformed his behavior since he had been


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convicted of possession of stolen property and possession of marijuana after getting
married and of burglary and assault after his son's birth. The court was troubled by
the fact that he had continued to associate with friends who had influenced his earlier
criminal behavior and concluded that his criminal history category did not
"overrepresent[] [his] propensity to commit offenses."

      The district court therefore denied Rodriguez-Magallon a downward departure
and variance, and concluded that a guideline sentence was appropriate:
      [E]ven though a downward departure would be authorized under the
      guidelines, I find it's not warranted under the facts of your case. . . . After
      considering the nature of your offense here and your past criminal
      history record, I do not believe that a downward variance is justified. I
      considered all the factors in [18 U.S.C. §] 3553(a) and find a sentence
      within the advisory guideline range is appropriate.

The court balanced criminal history and the nature of the offense against the other §
3553(a) factors and the potential it saw in Rodriguez-Magallon to return to being "a
good husband, a good father, and a good employee." It then imposed a 77 month
sentence, at the bottom of the advisory range. This appeal followed.

       We review the sentence imposed by the district court under a deferential abuse
of discretion standard, looking first at whether the court committed a significant
procedural error, such as "'failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the [18
U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence.'" United States v. Feemster, 572
F.3d 455, 461 (8th Cir. 2009) (en banc) (quoting Gall v. United States, 552 U.S. 38,
51 (2007)).

       Rodriguez-Magallon contends that the district court abused its discretion by
failing to identify the provisions of § 3553(a)(2) which justified its denial of his
variance request and its decision to impose a guideline sentence. The district court
rested its denial of a downward variance and its decision to impose a guideline

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sentence on the § 3553(a) factors it found most relevant: "the nature of [the] offense
here and [appellant's] past criminal history," see § 3553(a)(1), and his "propensity to
commit [further] offenses," see § 3553(a)(2)(C). Although Rodriguez-Magallon faults
the court for failing to link its reasons to specific subsections of § 3553(a), "[a]
mechanical recitation of the § 3553(a) factors is unnecessary, . . . particularly when
a judge elects to apply the advisory guideline range to a particular case." United
States v. Todd, 521 F.3d 891, 897 (8th Cir. 2008).

          Rodriguez-Magallon argues in addition that "the need for the sentence imposed
. . . to protect the public from further crimes of the defendant," § 3553(a)(2)(C), is not
a relevant consideration here because he will be deported upon the completion of any
sentence imposed. Given his record, however, a future deportation would not ensure
that he would not reoffend in this country. He has shown his ability to return to this
country shortly after deportation. See United States v. Molina, 563 F.3d 676, 678–79
& nn.2–3 (8th Cir. 2009); United States v. Morales–Uribe, 470 F.3d 1282, 1287 (8th
Cir. 2006).

       Reviewing the entire record, see United States v. Robinson, 516 F.3d 716, 718
(8th Cir. 2008), we find no procedural error. The district court did not abuse its
discretion in considering the likelihood that Rodriguez-Magallon would reoffend or
in explaining its chosen sentence.

        We accord a sentence within the applicable guideline range a presumption of
reasonableness. United States v. Garcia, 512 F.3d 1004, 1006 (8th Cir. 2008) (citing
Rita v. United States, 551 U.S. 338, 347 (2007)). "That the Sentencing Commission
and the district court both believed that [a 77 month sentence] was appropriate makes
it likely that the sentence is reasonable in 'the mine run of cases,' and that it reflects
the 'not greater than necessary' requirement of § 3553(a)[]." See United States v.
Harris, 493 F.3d 928, 932 (8th Cir. 2007) (quoting Rita, 551 U.S. at 351).

      Under all the circumstances we conclude that the bottom of the guideline
sentence imposed by the district court was not substantively unreasonable and that the


                                           -4-
court did not therefore abuse its discretion. Cf. United States v. Rivera–Gutierrez, 326
Fed App'x 410 (8th Cir. 2009) (affirming as reasonable 57 month guideline sentence
imposed for conviction under 8 U.S.C. §§ 1326(a) and (b)(2)); United States v.
Ventura, 329 Fed App'x 686 (8th Cir. 2009) (affirming as reasonable 70 month
guideline sentence imposed for conviction under §§ 1326(a) and (b)(2)).

      Accordingly, the judgment of the district court is affirmed.
                      ______________________________




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