                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 09-3869
                                  ___________

United States of America,              *
                                       *
            Appellee,                  * Appeal from the United
                                       * States District Court for
      v.                               * the District of South Dakota.
                                       *
Pablo Mireles-Martinez,                *     [UNPUBLISHED]
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: October 21, 2010
                                Filed: October 27, 2010
                                 ___________

Before MURPHY, BEAM, and BENTON, Circuit Judges.
                           ___________

PER CURIAM.

      Pablo Mireles-Martinez pled guilty to the charge of Illegal Reentry After
Deportation, in violation of 8 U.S.C. § 1326(a). The suggested U.S. Sentencing
Guidelines Manual (U.S.S.G.) range was 77 to 96 months and the district court1
arrived at an 84-month sentence. Mireles-Martinez appeals, claiming that because he
will be deported immediately following his release, anything over the 30-month
sentence he suggested was greater than necessary and contravenes the express



      1
        The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota.
sentencing limitation set forth in 18 U.S.C. § 3553(a). We disagree and affirm the
district court.

I.    BACKGROUND

       Mireles-Martinez came to the United States from Mexico in 1990. Since that
time he has been deported on four occasions and has committed numerous crimes.
Relevant to the instant case, on June 3, 2008, Mireles-Martinez was arrested in Deuel
County, South Dakota, and charged with driving under the influence third offense
(DUI) and impersonation to deceive a law enforcement officer. He was sentenced
following conviction to two years' imprisonment. An Immigration and Customs
Enforcement (ICE) agent then determined Mireles-Martinez's illegal
reentry/immigration status and the instant charges ensued. Mireles-Martinez pled
guilty to the Illegal Reentry After Deportation charge.

       At sentencing on the immigration charge, Mireles-Martinez requested a
downward variance to a 30-month sentence based upon his view that the resulting
suggested range of 77 to 96 months was "draconian." Mireles-Martinez has an
extensive criminal record, including attempted arson, multiple arrests for battery
and/or assault, several DUIs, vehicle thefts, and public indecency. The biggest factor
affecting the length of Mireles-Martinez's sentence was a 16-level enhancement that
was applied pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) because Mireles-Martinez
committed his "illegal reentry subsequent to deportation" after being convicted in
October 1996 for attempted arson, a felony crime of violence. This brought his total
offense level to 21, with a corresponding Guidelines range of 77 to 96 months. The
court specifically stated that there was no reason to depart or vary and discussed the
§ 3553(a) factors, highlighting the need to protect the public from further crimes given
Mireles-Martinez's volatile past criminal behavior. The court emphasized that "[t]he
defendant . . . is a dangerous person, not the kind of person that should be coming



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back to the United States, and that is one of the reasons that this enhancement
probably is there." The court imposed an 84-month sentence.

II.   DISCUSSION

       Mireles-Martinez only challenges the substantive reasonableness of his sentence
on appeal, claiming that the sentence is longer than necessary to accomplish the need
to protect the public from further crimes. "We review the substantive reasonableness
of a sentence for abuse of discretion." United States v. Shuler, 598 F.3d 444, 447 (8th
Cir.), cert. denied by Fiorella v. United States, 130 S. Ct. 3436 (2010).

       At sentencing, the court stated that Mireles-Martinez "pose[d a] low risk of
future substance abuse in the United States because he will be deported upon his
release from custody." Mireles-Martinez contends that this statement by the district
court proves that his 84-month sentence is greater than necessary because his post-
incarceration deportation should have likewise weighed heavily in his favor when the
court considered the need to protect the public. Yet the fact that the court determined
Mireles-Martinez was at low risk of future substance abuse is a separate consideration
from whether he may commit crimes that harm the public, especially given the
likelihood that he will follow his past practice of almost immediately illegally
reentering the United States. The district court did not abuse its discretion in its
careful consideration of these distinct factors.

       As to the length of the imposed sentence, the Guidelines themselves
contemplate Mireles-Martinez's alien status and criminal history, and prompt the 16-
level enhancement in this case. In the section of the Guidelines that addresses
offenses involving immigration, naturalization and passports, section
2L1.2(b)(1)(A)(ii) states that "[i]f the defendant previously was deported, or
unlawfully remained in the United States, after a conviction for a felony that is a crime
of violence, increase [the base offense level] by 16 levels." Accordingly, the instant

                                          -3-
situation is specifically contemplated by the Guidelines, which fully recognize that
these defendants may be deported upon release, and still suggest a length of sentence
much longer than Mireles-Martinez's proposed 30 months.

         The district court conducted a thorough analysis and arrived at a Guidelines
sentence that was mid-range, which we may presume is reasonable on appeal. United
States v. McCraney, 612 F.3d 1057, 1068 (8th Cir. 2010). It is clear 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) for the typical offender under these circumstances.
The likelihood of deportation upon release is not among the sentencing factors set out
in § 3553(a). United States v. Molina, 563 F.3d 676, 678 (8th Cir. 2009). And, even
though Mireles-Martinez's post-incarceration deportation could be a factor considered
by the district court when contemplating a variance, just as any factor could, it did not
influence the court in this case.

III.   CONCLUSION

      The district court did not abuse its discretion in the imposition of the 84-month
sentence.
                       ______________________________




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