                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 11-2362
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the District
                                         * of Nebraska.
Filiberto Arizmendi-Martinez,            *
                                         * [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                              Submitted: February 13, 2012
                                 Filed: March 12, 2012
                                  ___________

Before WOLLMAN, ARNOLD, and SMITH, Circuit Judges.
                         ___________

PER CURIAM.

      Filiberto Arizmendi-Martinez appeals his sentence following conviction under
8 U.S.C. § 1326 for illegal re-entry of a removed alien after an aggravated felony.
Arizmendi-Martinez claims that the district court1 erred by presuming that the
advisory United States Sentencing Guidelines (U.S.S.G. or Guidelines) range was a
reasonable default sentence and by imposing a substantively unreasonable sentence.
Because the district court did not abuse its discretion in imposing sentence, we affirm.



      1
       The Honorable Joseph F. Bataillon, then Chief Judge, United States District
Court for the District of Nebraska.
                                          I.

       Arizmendi-Martinez pleaded guilty to illegal re-entry of a removed alien after
an aggravated felony. At sentencing, the district court concluded—consistent with the
Revised Modified Presentence Investigation Report (PSR)—that Arizmendi-
Martinez’s total offense level was 21, with a Criminal History Category of II, for a
Guidelines range of 41 to 51 months’ imprisonment. Arizmendi-Martinez did not
object to the PSR or the district court’s calculation of the advisory Guidelines range.
While he did not formally file a motion for a downward departure or variance,
Arizmendi-Martinez argued at sentencing that the Guidelines gave undue weight to
his prior conviction and that the appropriate sentence under the § 3553(a) factors was
24 months’ imprisonment.

       The district court sentenced Arizmendi-Martinez to 40 months’ imprisonment,
3 years’ supervised release, and a $100 special assessment. Because Arizmendi-
Martinez had spent approximately one month in the custody of the United States
Immigration and Customs Enforcement agency, for which he would not receive credit
for time served, the district court adjusted Arizmendi-Martinez’s sentence under
U.S.S.G. § 5G1.3 and sentenced Arizmendi-Martinez to a term of incarceration one
month shorter than the low end of the advisory Guidelines range.

                                          II.

       “On appeal, we will review a sentence for an abuse of discretion, giving due
deference to the district court’s decision.” United States v. Zastrow, 534 F.3d 854,
855 (8th Cir. 2008) (quoting United States v. Braggs, 511 F.3d 808, 812 (8th Cir.
2008) (citing Gall v. United States, 552 U.S. 38 (2007) and Rita v. United States, 551
U.S. 338 (2007)). In applying this standard, we first ensure that the district court
made no “significant procedural error, such as miscalculating the Guidelines range,
treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,

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selecting a sentence based on clearly erroneous facts, or failing to adequately explain
why a sentence was chosen.” Id. (citations omitted). Then, we review the substantive
reasonableness of a sentence for abuse of discretion. United States v. Bauer, 626 F.3d
1004, 1010 (8th Cir. 2010) (citing Gall, 552 U.S. at 41).

                                           A.

         Arizmendi-Martinez argues that the district court procedurally erred by
presuming that a sentence within the Guidelines range was a reasonable default
sentence. He bases this argument on three comments made by the district court at
sentencing concerning the brevity of the PSR and relative lack of available
information to consider in imposing sentence. First, the district court noted that
“[t]here’s nothing in the presentence report that tells me” what Arizmendi-Martinez
had been doing since his illegal return to the United States in 2009, “[a]nd without that
information, it’s hard for me to give him anything other than a guideline sentence.”
Sentencing Tr. 7. Second, the district court stated, “I don’t know that there’s enough
information here for me to make a decision that a sentence that’s outside the guideline
is - - is more reasonable than a sentence within the guidelines. And for that reason,
I’m sentencing Mr. Arizmendi-Martinez to a period of 41 months.” Id. 15. Third, the
district court clarified that “the sentencing guidelines are clearly advisory,” but that
“it seems to me that it serves as a reasonable basis for the Court to make a decision if
it doesn’t have any additional information that would make it believe that a sentence
other than the guideline is appropriate.” Id. 16-17.

       In Nelson v. United States, 555 U.S. 350 (2009) (per curiam), the Supreme
Court noted that “[o]ur cases do not allow a sentencing court to presume that a
sentence within the applicable Guidelines range is reasonable.” Id. at 352. Rather,
the presumption “is an appellate court presumption . . . . [T]he sentencing court does
not enjoy the benefit of a legal presumption that the Guidelines sentence should
apply.” Id. (quoting Rita, 551 U.S. at 351) (alteration in original). In other words,

                                          -3-
“district judges, in considering how the various statutory sentencing factors apply to
an individual defendant, ‘may not presume that the Guidelines range is reasonable.’”
Id. (quoting Gall, 552 U.S. at 50). Arizmendi-Martinez contends that the district court
made such an improper presumption in this case.

       A close reading of the sentencing transcript reveals that the district court did not
presume that a sentence within the Guidelines range was reasonable. Rather, the
district court considered the limited amount of information available and determined
that the appropriate sentence for Arizmendi-Martinez was at the low end of the
Guidelines range. The district court considered a sentence outside the Guidelines
range, determined—based on consideration of the facts in the record—that a
Guidelines sentence was reasonable, and noted that no information in the record
suggested that a sentence outside the Guidelines range would be reasonable.

                                            B.

       Arizmendi-Martinez also claims that the district court procedurally erred by
failing to consider the § 3553(a) factors. He further argues that the district court gave
too much weight to the Guidelines range and insufficient weight to the remaining
§ 3553(a) factors, which we interpret as an argument that his sentence was
substantively unreasonable.

       We conclude that the district court did not abuse its discretion in imposing
sentence, because we find no procedural error or anything to rebut the presumption
of reasonableness that attaches to Arizmendi-Martinez’s sentence. See United States
v. Lozoya, 623 F.3d 624, 626 (8th Cir. 2010) (discussing substantive reasonableness);
United States v. Linderman, 587 F.3d 896, 901 (8th Cir. 2009) (within Guidelines
range sentence is presumed reasonable on appeal).




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                            IV.
The judgment is affirmed.
                ______________________________




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