                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 08-1368
                                 ________________


United States of America,                 *
                                          *
             Appellee,                    *
                                          *      Appeal from the United States
      v.                                  *      District Court for the
                                          *      District of South Dakota.
Herbert Alejandro Molina,                 *
also known as Teodoro Nava,               *
                                          *
             Appellant.                   *

                                 _______________

                            Submitted: November 10, 2008
                                Filed: May 4, 2009
                                ________________

Before MURPHY, RILEY and GRUENDER, Circuit Judges.
                         ________________

GRUENDER, Circuit Judge.

       Herbert Alejandro Molina pled guilty to illegally reentering the United States
after being deported in violation of 8 U.S.C. § 1326(a). At sentencing, the district
court1 correctly determined that Molina’s total offense level under the advisory
sentencing guidelines was 21. Since Molina’s criminal history placed him in category


      1
        The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota.
VI, his advisory sentencing guideline range was 77 to 96 months. The district court
sentenced Molina to 96 months’ imprisonment.

       Molina appeals, arguing first that the district court abused its discretion in
failing to consider the cost of imprisoning him for 96 months and the fact that he will
be deported after serving his sentence. Molina concedes that he did not raise either
the cost or the deportation issue at sentencing and that, as a result, our review is for
plain error. See United States v. Saddler, 538 F.3d 879, 891 (8th Cir.), cert. denied,
555 U.S. ---, 129 S. Ct. 770 (2008). Under the plain error standard, Molina “must
show that the district court made an obvious error, that there is a reasonable
probability that the error affected the outcome, and that failure to correct the error
would seriously affect the fairness, integrity, or public reputation of judicial
proceedings.” United States v. M.R.M., 513 F.3d 866, 870 (8th Cir.), cert. denied, 555
U.S. ---, 129 S. Ct. 171 (2008).

        Molina has not shown that the district court was permitted to consider the cost
of imprisoning him, much less that the court was required to do so sua sponte.
Although sentencing courts are required to consider the sentencing factors set out in
18 U.S.C. § 3553(a), the cost of imprisonment is not among them. Thus, we doubt
that sentencing courts have the authority to impose lesser sentences based on the cost
of imprisonment. See United States v. Wong, 127 F.3d 725, 728 (8th Cir. 1997)
(holding, pre-Booker, -Gall, and -Kimbrough, that “[t]he decision whether tax dollars
should be used to pay for lengthy sentences is a congressional determination, not one
to be made by federal courts”); United States v. Tapia-Romero, 523 F.3d 1125, 1126
(9th Cir. 2008) (holding, post-Booker, -Gall, and -Kimbrough, that “Congress has not
made the cost to society of a defendant’s imprisonment a factor [that] a sentencing
judge should consider under [18 U.S.C.] § 3553(a) in determining the appropriate term
of imprisonment under 18 U.S.C. § 3582(a)”). Even assuming that sentencing courts
are permitted to consider the cost of imprisoning a particular defendant, Molina has
still failed to meet his burden of showing that the district court made an “obvious

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error” by not raising the issue on its own initiative. Cf. Gall v. United States, 552 U.S.
---, 128 S. Ct. 586, 599 (2007) (“[I]t was not incumbent on the District Judge to raise
every conceivably relevant issue on his own initiative.”). Accordingly, the district
court did not plainly err in sentencing Molina to 96 months’ imprisonment without
considering, sua sponte, the cost of Molina’s prison sentence or the amount of tax
dollars that might be saved by imposing a lesser sentence.

       Molina’s argument that the district court should have considered the fact that
he will be deported after serving his sentence is also without merit. Like cost, the
likelihood of deportation is not among the sentencing factors set out in § 3553(a).
Nevertheless, § 3553(a)(2)(C) provides that a court shall consider “the need for the
sentence imposed . . . to protect the public from further crimes of the defendant.”
Molina asserts that the goal of protecting the public “would have best been served by
[allowing Molina to be deported] . . . as soon as possible rather than [keeping] him in
the United States at ongoing public expense.” This ipse dixit is unpersuasive; after all,
Molina pled guilty to illegally reentering the United States after he had previously
been deported, and the presentence report shows that Molina committed at least one
additional crime in the United States following his illegal reentry.2 Accordingly, the
district court did not plainly err in sentencing Molina to 96 months’ imprisonment


      2
        It should come as no surprise that aliens who violate federal criminal law are
subject to criminal punishment rather than immediate deportation. By definition,
aliens who violate 8 U.S.C. § 1326(a) by illegally reentering the United States after
being deported are “deportable” on at least one of the grounds enumerated in 8 U.S.C.
§ 1227(a)(1), which defines various “classes of deportable aliens.” Yet 8 U.S.C. §
1326(b)(2), the penalty provision under which Molina was sentenced, provides that
defendants “whose removal was subsequent to a conviction for commission of an
aggravated felony” may be imprisoned for up to twenty years, regardless of the
likelihood that the defendant will be deported after completing his term of
imprisonment. If Congress intended to minimize the amount of time that defendants
like Molina spend in prison before they are deported, it could have achieved that end
by lowering the maximum term of imprisonment under § 1326(b)(2).

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without considering, sua sponte, the fact that he will be deported again after serving
his sentence.3

       Molina also challenges the substantive reasonableness of the length of his
sentence, arguing that the district court gave excessive weight to the need for the
sentence imposed to protect the public from further crimes of the defendant and
insufficient weight to the other sentencing factors set out in § 3553(a). We review a
defendant’s challenge to the district court’s weighing of the relevant factors for abuse
of discretion, regardless of whether the defendant made an after-the-fact objection to
the length of the sentence that the court imposed. See United States v. Miller, 557
F.3d 910, 916 (8th Cir. 2009). Under this deferential standard, we accord a sentence
within the applicable guideline range a “presumption of substantive reasonableness
on appeal.” United States v. Phelps, 536 F.3d 862, 869 (8th Cir. 2008) (quoting
United States v. Robinson, 516 F.3d 716, 717 (8th Cir. 2008)), cert. denied, 555 U.S.
---, 129 S. Ct. 1390 (2009).

       As we have noted, the district court imposed a sentence at the top of the
applicable guideline range. The court explained that in light of Molina’s extensive
criminal history, it was “concerned under 3553 with protecting the public from further
crimes of the defendant.” The court’s specific reference to one of the sentencing
factors set out in § 3553(a) does not mean that it failed to properly weigh the others.
As we have consistently stated, “[a] mechanical recitation of the § 3553(a) factors is

      3
        This is not to say that the district court was precluded from considering the
effects of Molina’s eventual deportation in connection with the statutory sentencing
factors, only that the court was not required to do so after Molina failed to raise the
issue at sentencing. Cf. United States v. Morales-Uribe, 470 F.3d 1282, 1287 (8th Cir.
2006) (noting that “the need to protect the public from a defendant may be reduced
in a case where, upon immediate release from incarceration, the Government will
deport the defendant,” but concluding that this rationale did not apply where the
defendant, who was convicted of a federal drug offense, had entered the United States
illegally after being deported).

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unnecessary, . . . particularly when a judge elects simply to apply the advisory
guideline range to a particular case.” United States v. Zastrow, 534 F.3d 854, 855 (8th
Cir. 2008) (quoting United States v. Todd, 521 F.3d 891, 897 (8th Cir. 2008)). Molina
has not identified any atypical facts or complex issues that required the court to
describe the precise weight it assigned to each sentencing factor. Under the
circumstances, it is “clear to us that the sentencing judge rested his decision on the
Sentencing Commission’s own reasoning that the advisory guidelines sentence is
sufficient, but not greater than necessary, to satisfy the purposes of § 3553(a)(2) for
the typical offender with [Molina’s] offense conduct and criminal history.” See
United States v. Gray, 533 F.3d 942, 946 (8th Cir. 2008) (citing Rita v. United States,
551 U.S. 338, ---, 127 S. Ct. 2456, 2468 (2007)). Because Molina has not shown that
the district court committed a clear error of judgment in weighing the relevant
sentencing factors, we cannot say that the court abused its discretion in imposing a
sentence at the top of the advisory guideline range. See Saddler, 538 F.3d at 890.

      For the foregoing reasons, we affirm Molina’s sentence of 96 months’
imprisonment.
                      _____________________________




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