                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-3089
                                    ___________

United States of America,             *
                                      *
            Appellant,                *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * District of Minnesota.
Bismarck Guillen-Esquivel,            *
also known as Luis Nieves Perez,      *
                                      *
            Appellee.                 *
                                 ___________

                              Submitted: May 13, 2008
                                 Filed: July 22, 2008
                                  ___________

Before LOKEN, Chief Judge, BYE and COLLOTON, Circuit Judges.
                              ___________

BYE, Circuit Judge.

       The government appeals the twenty-four month and seven-day sentence given
to Bismarck Guillen-Esquivel after he pleaded guilty to document trafficking in
violation of 18 U.S.C. § 1028(a)(3) and aggravated identity theft in violation of 18
U.S.C. § 1028A(a)(1). We reverse and remand for resentencing.

                                           I

      The Police Department in Worthington, Minnesota, received a tip indicating
Guillen-Esquivel was selling birth certificates and social security cards to others. As
a result of the tip, immigration authorities began an undercover investigation. During
the investigation, a confidential informant purchased from Guillen-Esquivel three
separate birth certificates, with corresponding social security cards belonging to
people from Puerto Rico. A federal grand jury subsequently indicted Guillen-
Esquivel on one count of trafficking in identification documents, three counts of
selling social security cards, and three counts of aggravated identity theft. Pursuant
to a written plea agreement, he pleaded guilty to one count of document trafficking
and one count of aggravated identity theft.

      The crime of aggravated identity theft requires a sentence of two years, which
must run consecutive to any other term of imprisonment imposed by the court at the
same time. See 18 U.S.C. § 1028A(b). In addition, the statute prohibits district courts
from considering the two-year consecutive sentence when imposing the other term
of imprisonment. Specifically, the statute provides:

      [I]n determining any term of imprisonment to be imposed for the felony
      during which the means of identification was transferred, possessed, or
      used, a court shall not in any way reduce the term to be imposed for such
      crime so as to compensate for, or otherwise take into account, any
      separate term of imprisonment imposed or to be imposed for a violation
      of this section[.]

Id. at § 1028A(b)(3).

       Consistent with the requirements of the statute, the presentence report
calculated a separate advisory guidelines range of 10-16 months for the document
trafficking charge, and noted § 1028A required a consecutive two-year term of
imprisonment to be imposed along with whatever sentence the district court chose for
the document trafficking charge.




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      At the sentencing hearing, the district court indicated it was varying from the
advisory guideline range of 10-16 months for the document trafficking charge by
imposing a seven-day sentence. The district court gave the following reasons for its
variance:

      It appears to this Court that the guidelines sentence in conjunct with the
      two-year mandatory sentence is excessive. It is excessive in light of the
      nature of the offense and in light of the sentence that, ah, that it falls with
      -- in light of the sentences imposed on the other defendants. This
      gentleman was in the United States illegally. He was working. He was
      paying taxes. The taxes were being taken out. The guy was here, as is
      the background of virtually everyone in this courtroom, to find a job, to
      find a way to raise a family, and to try and make a living. He was here
      wrongly. The United States Congress has defined the circumstances
      under which people are permitted to come to this country.

      As is much in the news, there are what? 10, 12, 14 million people who
      are similarly situated. That is not an excuse to break the law; I do not
      regard it as an excuse to break the law. But in the time that he lived here,
      he lived a law abiding life with the exception of two things, one being
      here, for which he has come before this Court, and then he chose to
      supplement his income, not by creating names out of a whole cloth, but
      somebody supplied him the names of real people. That is a crime. The
      others with whom, who were arrested, had very short sentences, which
      the Court believed were prudential. Under these circumstances, to
      sentence him to 16, or 10 to 16 months plus two years I think is
      excessive in light of the experience of all of the other defendants. If this
      man were occupied in a stand-alone situation, where he was not, where
      he was doing this at his home when he had other places to be, he was just
      helping out other friends and other colleagues where he was working.
      Albeit illegally. Under those circumstances, the Court is of a mind to
      impose upon him a seven-day sentence for the first offense, and a
      two-year offense — two-year successive sentence as is mandated for the
      second.




                                           -3-
      I recognize that this is a variance. The reality of it is, is that we have got
      a situation that is quite out of control. The United States government,
      depending on which day, which year, which week, decides to make
      whatever prosecution or investigative efforts it chooses. That is
      extremely, and entirely the prerogative of the executive branch. But
      what we have here, at least as I understand it, is a situation at Swift
      where the company was, if not complicitous, they certainly knew what
      was going on to a large extent. This is an industry that is replete, the
      United States could happily turn around and go back and do it again, and
      they'd be able to pick up dozens more just like these folks. Under these
      circumstances, I believe that this sentence is appropriate. He will be
      adequately punished. He is certainly going to be leaving the United
      States, and I'm absolutely confident he will not return. And that will be
      the sentence which I will impose.

Sent. Tr. at 8-10 (emphasis added).

      The government filed a timely appeal, arguing in part the district court erred by
considering the two-year consecutive sentence for aggravated identity theft when
imposing the seven-day sentence for document trafficking. Guillen-Esquivel counters
by suggesting we should defer to the district court pursuant to Gall v. United States,
128 S. Ct. 586 (2007).

                                            II

        Section 1028A(b)(3) prohibited the district court from "in any way reduc[ing]
the term to be imposed for [document trafficking] so as to compensate for, or
otherwise take into account, any separate term of imprisonment imposed or to be
imposed for [aggravated identify theft]." The comments made by the district court
at the time of sentencing indicate the court did exactly that when it chose a seven-day
sentence for document trafficking. Twice the district court took into account the
twenty-four month sentence in concluding the overall sentence would be excessive if
it chose a sentence for document trafficking within the advisory guideline range. See

                                           -4-
Sent. Tr. at 8-10 ("[T]he guidelines sentence in conjunct with the two-year
mandatory sentence is excessive . . . Under these circumstances, to sentence him to
16, or 10 to 16 months plus two years I think is excessive") (emphasis added). The
statute required the district court to ignore altogether the twenty-four month sentence
when imposing a sentence for the document trafficking charge. Such clearly did not
happen. Under these circumstances, we have no choice but to reverse and remand for
resentencing.

       Guillen-Esquivel argues the Supreme Court's recent decisions in Gall, United
States v. Booker, 543 U.S. 220 (2005), and Rita v. United States, 127 S. Ct. 2456
(2007), require us to defer to the district court's conclusion an overall sentence of two
years and seven days was "sufficient, but not greater than necessary" in this case to
comply with the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). We
disagree.

       Section 1028A(b)(3) limits the amount of discretion district courts can exercise
with respect to sentences for aggravated identity theft. The Supreme Court's recent
jurisprudence does not prohibit Congress from setting any limits on a sentencing
court's discretion. For example, we have recognized Congress can limit a sentencing
court's discretion through the use of mandatory minimum statutes because such
statutes do not implicate the Sixth Amendment problems addressed in Booker. See,
e.g., United States v. Gregg, 451 F.3d 930, 937 (8th Cir. 2006) (rejecting the claim
district courts have discretion to decide whether an overall sentence is reasonable, and
impose a non-Guidelines sentence, when a portion of the sentence results from a
statutory mandatory minimum).            Guillen-Esquivel has not identified how
§ 1028A(b)(3) suffers from the same constitutional infirmities associated with a
mandatory guideline system. Thus, Gall, Booker, and Rita do not allow district courts
to ignore the limits placed upon their discretion by § 1028A(b)(3).




                                          -5-
                            III

We reverse and remand for resentencing.
               ______________________________




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