                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-1722
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
Juan R. Sigala,                          *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: December 10, 2007
                                 Filed: April 3, 2008
                                  ___________

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

COLLOTON, Circuit Judge.

       Juan Sigala pled guilty to distribution of cocaine and possession with intent to
distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). The district
court1 sentenced Sigala to 24 months’ imprisonment, the bottom of the advisory
sentencing guideline range. Sigala appeals his sentence, arguing that the district court
impermissibly applied a presumption of reasonableness to the advisory range, failed




      1
         The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
to consider the sentencing factors under 18 U.S.C. § 3553(a), and failed to provide
adequate justification for the sentence. We affirm.

       Sigala first contends that the district court erroneously applied a presumption
of reasonableness to the calculated guidelines range. In Rita v. United States, 127 S.
Ct. 2456 (2007), the Supreme Court held that a court of appeals may apply a
presumption of reasonableness to a sentence within the advisory guidelines range, but
said that “the sentencing court does not enjoy the benefit of a legal presumption that
the Guidelines sentence should apply.” Id. at 2465. See also United States v.
Robinson, 516 F.3d 716, 718 (8th Cir. 2008). We conclude that the district court did
not apply an impermissible presumption in this case.

       Sigala points to the following statement of the district court as demonstrating
an impermissible presumption: “To assist your attorney and the government and me,
for that matter, to determine what a reasonable sentence is, we use the Federal
Sentencing Guidelines.” (S. Tr. 4). When this statement is considered in context, we
think it is clear that the district court was not applying an impermissible presumption
of reasonableness, but rather was explaining the proper sentencing procedure. “[A]
district court should begin all sentencing proceedings by correctly calculating the
applicable Guidelines range. As a matter of administration and to secure nationwide
consistency, the Guidelines should be the starting point and the initial benchmark.”
Gall v. United States, 128 S. Ct. 586, 596 (2007) (citation omitted). It is thus not
incorrect to say that a sentencing court uses the guidelines “to assist” in determining
what is an appropriate sentence. Nothing in the balance of the record leads us to
conclude that the district court applied an impermissible presumption. After
determining the advisory guidelines range, the court heard argument from counsel
about what sentence should be imposed. The court then stated that it was using the
guidelines as advisory, and that after “considering the factors under 18 U.S.C. 3553,”
the court determined that a sentence of 24 months was “a reasonable and appropriate
sentence.” (Sent. Tr. 11). This approach is not inconsistent with the direction of Rita.

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       We also conclude that the district court properly considered the sentencing
factors in 18 U.S.C. § 3553(a), as required by United States v. Booker, 543 U.S. 220,
259-60 (2005), and adequately stated the reasons for the sentence. See 18 U.S.C.
§ 3553(c). In Rita, the Court said that “when a judge decides simply to apply the
Guidelines to a particular case, doing so will not necessarily require lengthy
explanation.” 127 S. Ct. at 2468. This is because “[c]ircumstances may well make
clear that the judge rests his decision upon the Commission’s own reasoning that the
Guidelines sentence is a proper sentence (in terms of § 3[5]53(a) and other
congressional mandates) in the typical case, and that the judge has found that the case
before him is typical.” Id.

       As in Rita, the district court’s statement of reasons here was “brief but legally
sufficient.” Id. at 2469. Sigala’s counsel argued for a more lenient sentence on the
grounds that Sigala also faced removal from the United States under the immigration
laws at the conclusion of his sentence, that Sigala “did attempt to cooperate with the
government,” that he tested negative for the use of drugs during the previous four
years, and that he had maintained gainful employment. The record shows that the
court listened to these arguments, but simply found the proffered circumstances
insufficient to warrant a sentence lower than the advisory sentence of 24 months. See
S. Tr. 7 (“[W]e use the Federal Sentencing Guidelines as advisory. I intend to follow
them in this case, and I’m going to assess your punishment at 24 months.”); id. at 11
(“[C]onsidering the factors under 18 U.S.C. 3553, the Court determines that the
sentence of 24 months is a reasonable and appropriate sentence in this case.”). We see
no material distinction between this case and Rita, where the sentencing judge listened
to the arguments and then said that the advisory sentencing range was not
“inappropriate.” Rita, 127 S. Ct. at 2469. In United States v. Mosqueda-Estevez, 485
F.3d 1009, 1013 (8th Cir. 2007), we held that a similar record was sufficient to
demonstrate the district court’s consideration of the § 3553(a) factors.




                                          -3-
The judgment of the district court is therefore affirmed.
               ______________________________




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