                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-1170
                                    ___________

United States of America,               *
                                        *
            Plaintiff – Appellant,      *
                                        * Appeal from the United States
      v.                                * District Court for the Eastern
                                        * District of Missouri.
Viridiana Desantiago-Esquivel,          *
                                        *
            Defendant – Appellee.       *
                                   ___________

                              Submitted: October 17, 2007
                                 Filed: May 22, 2008
                                  ___________

Before RILEY, MELLOY, and COLLOTON, Circuit Judges.
                            ___________

MELLOY, Circuit Judge.

       Viridiana Desantiago-Esquivel, an illegal alien from Mexico, pled guilty to
conspiring to distribute 50 grams or more of methamphetamine in violation of 21
U.S.C. § 841(a)(1). The district court found that she qualified for safety valve relief
under U.S.S.G. § 5C1.2, which enabled the district court to impose a sentence less
than the statutory mandatory minimum term of 10 years. The applicable Guidelines
range was 108-135 months. The district court imposed a sentence of 36 months if
Desantiago-Esquivel voluntarily stipulated to removal after serving her sentence. The
district court imposed an alternative sentence of 99 months in the event Desantiago-
Esquivel did not stipulate to removal. The government appeals the district court’s
structuring of alternative sentences as not authorized by statute and challenges as
unreasonable the downward variance in the 36-month sentence. We reverse and
remand for re-sentencing.

                                   I. Background

                              A. Factual Background

       At the time of the offense, Desantiago-Esquivel was a twenty-three year old
Mexican citizen illegally present in the United States. Immigration authorities had
twice removed Desantiago-Esquivel from the United States. Each time she had been
arrested for falsely claiming United States citizenship. She had no prior convictions.

        Desantiago-Esquivel has three children from a previous relationship and an
infant daughter with her common-law husband, Clemente Alonso-Lara. Her children
are all United States citizens. Since having children, Desantiago-Esquivel has stayed
at home raising her children while her previous boyfriend, and later Alonso-Lara,
provided financial suppport. Desantiago-Esquivel’s sister in Missouri is now caring
for the children. Upon removal, Desantiago-Esquivel plans to take the children and
live with another sister in Mexico.

       Desantiago-Esquivel’s other main source of income was drug sales. She and
Alonso-Lara sold drugs together. She acted as an interpreter for him because she
spoke English. Relevant to the present offense, Alonso-Lara purchased approximately
four pounds of methamphetamine in Arkansas and brought the drugs to his and
Desantiago-Esquivel’s residence in Holcomb, Missouri. A few days later,
Desantiago-Esquivel and a confidential informant agreed to exchange two ounces of
methamphetamine for $2500. The next day, Desantiago-Esquivel sold the
methamphetamine to an undercover agent who was accompanied by the informant.
After the sale, the police arrested Desantiago-Esquivel and Alonso-Lara. The police

                                         -2-
obtained a search warrant for their residence and seized 677.5 grams of
methamphetamine, a loaded revolver and ammunition, pounds of cutting agents used
with methamphetamine, documents and pads with financial calculations, and $1600
in cash. Desantiago-Esquivel admitted that the methamphetamine was to be
distributed in southeast Missouri and that she had been distributing methamphetamine
for months.

                                    B. Sentencing

       At sentencing, Desantiago-Esquivel argued for a downward departure because
her conviction represented aberrant behavior for her and resulted from her family’s
poverty. See U.S.S.G. § 5K2.20 (authorizing the district court to depart downward
in some cases if the defendant’s conduct “represents a marked deviation . . . from an
otherwise law-abiding life”). She also argued for a reduced sentence in consideration
for voluntarily stipulating to removal and waiving whatever due process rights she
had. She noted that in recorded telephone conversations, she always served solely as
an intermediary, taking drug transaction information to her husband. While she
participated in drug trafficking, she argued she did so solely as an interpreter for her
husband. Finally, she stated that she wanted to be with her young children. The latter
arguments were essentially a request for a § 3553(a) variance.

      The district court stated that although Desantiago-Esquivel did not meet the
standard of aberrant behavior because of the continuing nature of the drug trafficking,
she was “acting under someone else’s authority to whom [she was] behold[en] for
food, shelter, and whatever else.” The district court emphasized that Desantiago-
Esquivel was the mother of four young children and departed under 18 U.S.C.
§ 3553(a) from the applicable Guidelines range of 108-135 months. The district court
imposed a 36 month sentence (the “lower sentence”) if Desantiago-Esquivel




                                          -3-
voluntarily stipulated to removal after serving her sentence. If she did not, the district
court imposed a 99 month sentence (the “higher sentence”).1

                                     II. Discussion

        We review the district court’s sentence for reasonableness. Gall v. United
States, 128 S. Ct. 586, 594 (2007). The reasonableness of the sentence is reviewed
under a “deferential abuse-of-discretion standard.” Id. at 591. “In reviewing the
reasonableness of a sentence outside the Guidelines range, appellate courts may
therefore take the degree of variance into account and consider the extent of a
deviation from the Guidelines.” Id. at 594-95. The district court must “ensure that the
justification is sufficiently compelling to support the degree of the variance” and
“adequately explain the chosen sentence to allow for meaningful appellate review.”
Id. at 597.

        Reasonableness review also requires us to “first ensure that the district court
committed no significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence—including an explanation for any
deviation from the Guidelines range.” Id. “[T]he Guidelines should be the starting
point and the initial benchmark,” but the district court should also consider the §
3553(a) factors in determining an appropriate sentence. Id. at 596. If the decision was
“procedurally sound,” we then review the “substantive reasonableness of the
sentence” under the abuse-of-discretion standard considering the totality of the
circumstances. Id. at 597.


      1
       The district court said it was “departing” under § 3553(a). Given the
disposition of this case, we do not need to decide if the sentence represented a
departure or variance.

                                           -4-
       We do not read the Gall list of procedural impediments to be all inclusive. The
procedure utilized in this case, imposing alternative sentences, also constitutes a
significant error and requires reversal. Section 3551(b) states the types of authorized
sentences and does not authorize alternative sentences. 18 U.S.C. § 3551(b). The
district court is only authorized to impose “a term of imprisonment.” 18 U.S.C.
§ 3551(b)(3) (emphasis added). District courts imposed alternative sentences only
after Blakely2 in the event that the Guidelines were found unconstitutional. See
United States v. White, 439 F.3d 433, 434-35 (8th Cir. 2006) (discussing the district
court’s imposition of alternate sentences). Further, the type of alternative sentences
used in this case involves a change of fact—if Desantiago-Esquivel voluntarily
stipulates to removal—that is wholly in Desantiago-Esquivel’s control, that occurs
after sentencing, and that has significant legal consequence without any judicial
oversight. This is distinct from the post-Blakely alternative sentences that were
wholly dependent on changes in the law.

       Since a significant procedural error occurred, we will not speculate as to what
sentence the district court might have imposed if it imposed a single sentence on
Desantiago-Esquivel. We leave it to the district court to impose what it considers to
be a reasonable sentence in the first instance. To the extent either party believes the
sentence to be unreasonable, we will consider the appeal issues at that time, taking
into consideration the district court’s reasons for imposition of the sentence it imposes
and the arguments of the parties.

                                    III. Conclusion

      For these reasons, we reverse and remand for re-sentencing.
                      ______________________________



      2
       Blakely v. Washington, 542 U.S. 296 (2004).

                                           -5-
