                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-3371
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                   David Dieguez

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                     for the District of Nebraska - Lincoln
                                 ____________

                             Submitted: April 11, 2016
                               Filed: May 27, 2016
                                 ____________

Before GRUENDER and KELLY, Circuit Judges, and ERICKSEN,1 District
Judge.
                         ____________

ERICKSEN, District Judge.

      David Dieguez appeals the 21-month sentence imposed after he pleaded guilty
to one count of failure to register as a sex offender in violation of 18 U.S.C.

      1
       The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota, sitting by designation.
§ 2250(a). He argues that the district court2 procedurally erred by failing to give an
explanation for the sentence and that the sentence is substantively unreasonable. We
affirm.

       At the sentencing hearing, the district court calculated the United States
Sentencing Guidelines range for Dieguez's sentence. Citing the inclusion of a fifteen-
year-old theft conviction in the calculation of his criminal history category, Dieguez
moved for a downward departure under § 4A1.3(b). After denying that motion, the
court found the applicable range to be 21 to 27 months. The parties agreed that the
court had accurately stated the Guidelines provisions. The district court then heard the
Government's arguments for a sentence in the "middle to high range" of the Guidelines
provisions, followed by Dieguez's counsel's arguments. Counsel for Dieguez urged
the district court to consider, in assessing the § 3553(a) factors, that her client had
"taken steps to mitigate" his chances of recidivism by completing certain coursework
during his time in custody; the circumstances of his initial, underlying conviction that
prompted the registration requirement; and the fact that his girlfriend would provide
him support. The court noted on the record that it had reviewed the coursework
completion materials that Dieguez submitted. Dieguez's counsel also asked the court
to recommend that he receive credit for time served since March 2015 and that he be
placed in Fresno, California, to be near his girlfriend and family. Next, the court heard
from Dieguez in his own words.

       The district court then pronounced Dieguez's sentence of 21 months, stating that
it had considered all of the § 3553(a) factors, including "all of [Dieguez's] history and
characteristics and the nature of the present offense in context with [his] prior record
and the initial underlying offense." The court explained that "the primary factor that
guides this sentence [was] not [Dieguez's] nearly 15-year-old prior conviction for


       2
       The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska.

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theft, but rather the fact that [he] moved from state to state on prior occasions without
registering as a sex offender . . . ." The court also expressed its concern that Dieguez's
most recent violation came even after he had received probation and been incarcerated,
measures which "were to no effect at this point in time." The district court explained
that it was necessary to "get [Dieguez's] attention that failing to register as a sex
offender is a serious offense." As "tempering" factors weighing against a higher
sentence and for a sentence at the low end of the Guidelines range, the court cited "the
context of the underlying offense and [Dieguez's] nonviolent background." The
district court concluded that a 21-month sentence would "reflect the seriousness of
the offense," "promote respect for the law," and "provide just punishment for the
offense." It stated that it would recommend incarcerating him as close as possible to
Fresno, California.

       At the end of the sentencing, the district court asked counsel if they had "any
questions or wish[ed] any further elaboration of [the court's] statement of reasons."
Dieguez clarified the date on which he had been arrested in March 2015, and the
district court agreed that he should receive credit for time served from that date. Aside
from this point of clarification, counsel for Dieguez assured the court that they had "no
other questions or concerns."

1.    Procedural Argument

       On appeal, Dieguez argues that the district court failed to give an adequate
explanation for the sentence because it "did not address the reasons Dieguez gave for
believing that a shorter sentence would be sufficient to deter further aberrant conduct."
Specifically, he asserts that the district court did not address his arguments about the
fifteen-year-old theft conviction, the coursework he had completed, and the support
provided by his girlfriend.




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       A district court must at the time of sentencing "state in open court the reasons
for its imposition of the particular sentence . . . ." 18 U.S.C. § 3553(c). This
requirement allows for meaningful review and helps assure the public that a sentence
resulted from a reasoned process. Rita v. United States, 551 U.S. 338, 356 (2007).
"The appropriateness of brevity or length, conciseness or detail" of the court's
explanation will depend on the circumstances. Id. "[W]hen a judge decides simply
to apply the Guidelines to a particular case, doing so will not necessarily require
lengthy explanation." Id.

       As illustrated above, the district court in this case, in sentencing Dieguez at the
low end of the Guidelines range, stated its reasoning in some detail. Its explanation
in open court expressly assured the parties that it had considered all of the § 3553(a)
factors. The court also, during the course of the sentencing proceeding, specifically
addressed the three arguments Dieguez contends on appeal were ignored. It explained
that the sentence reflected its consideration of Dieguez's "prior record" and that "the
primary factor that guides this sentence" was not the relatively old theft conviction but
rather Dieguez's previous violations of the sex offender registration requirement. The
court also stated on the record that it had reviewed the materials Dieguez submitted
showing his completion of coursework while in custody.3 Finally, the court's
recommendation of a Bureau of Prisons placement near Dieguez's girlfriend
demonstrated its consideration of his arguments about the support she could provide
him.


      We need not decide, however, whether the district court's statements in open
court were adequate to explain its sentence, because Dieguez explicitly waived any


       3
        The court also recommended that Dieguez be eligible to pursue a GED while
serving his sentence, suggesting that the court appreciated the potential salutary
effects of the defendant's pursuit of education while incarcerated. See 18 U.S.C.
§ 3553(a)(2)(D).

                                           -4-
argument that the explanation was inadequate. The court expressly gave him an
opportunity to request "any further elaboration" of the statement of reasons that it had
provided at the sentencing. In response, Dieguez raised a point of clarification
regarding the date of his arrest, and the district court responded in his favor, finding
that Dieguez should receive credit for time served starting at the earlier date that he
mentioned. After this point was resolved, Dieguez then represented that he had "no
other questions or concerns."


       By assuring the district court, when directly asked if he "wish[ed] any further
elaboration of [the court's] statement of reasons," that he had "no other questions or
concerns," Dieguez intentionally relinquished his known rights under § 3553(c) with
regard to a statement of reasons. In other words, Dieguez waived, on the record and
in response to the court's inquiry as to this precise question, any argument that the
district court's explanation of its sentence at the hearing was inadequate. See United
States v. Olano, 507 U.S. 725, 733 (1993) (defining waiver as the "intentional
relinquishment or abandonment of a known right"); United States v. Jones, 770 F.3d
710, 713 (8th Cir. 2014) (finding defendant waived his rights to make a statement and
to question witnesses where he "declined the district court's invitation to testify or
cross examine witnesses"). Given Dieguez's waiver of this argument, we will not
sustain his procedural challenge to the district court's sentencing explanation on
appeal.


2.    Substantive Reasonableness Argument


       Dieguez also argues that his sentence was substantively unreasonable because
the district court clearly erred in weighing the § 3553(a) sentencing factors. "We
review a challenge to the substantive reasonableness of a sentence for an abuse of
discretion." United States v. Leonard, 785 F.3d 303, 306 (8th Cir. 2015) (quoting
United States v. Luleff, 574 F.3d 566, 569 (8th Cir. 2009)). This review is "highly

                                          -5-
deferential." Roberts, 747 F.3d at 992. "A sentencing court abuses its discretion when
it fails to consider a relevant factor that should have received significant weight, gives
significant weight to an improper or irrelevant factor, or considers only the appropriate
factors but commits a clear error of judgment in weighing those factors." Leonard,
785 F.3d at 306-07. The district court "has wide latitude to weigh the section 3553(a)
factors in each case and assign some factors greater weight than others." Roberts, 747
F.3d at 992 (quoting United States v. Lozoya, 623 F.3d 624, 627 (8th Cir. 2010)).
Moreover, a "sentence within the Guidelines range is presumptively reasonable on
appeal." Maxwell, 778 F.3d at 737 (citing United States v. Eason, 643 F.3d 622, 626
(8th Cir. 2011)). As described above, Dieguez's sentencing record reflects that the
district court considered the § 3553(a) factors and determined that, particularly in light
of the defendant's previous violations of the registration requirement, the 21-month,
within-Guidelines sentence appropriately "reflect[ed] the seriousness of the offense"
and would "promote respect for the law" and "provide just punishment for the
offense." We find no abuse of discretion.


      Accordingly, we affirm the judgment of the district court.
                        ______________________________




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