                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 08-1985
                                 ________________

United States of America,                  *
                                           *
             Appellee,                     *
                                           * Appeal from the United States
      v.                                   * District Court for the
                                           * Western District of Arkansas.
Juan Magana-Aguirre,                       *
                                           *
             Appellant.                    *


                                 ________________

                            Submitted: October 13, 2008
                                Filed: November 24, 2008
                               ________________

Before MELLOY, BEAM and GRUENDER, Circuit Judges.
                        ________________

GRUENDER, Circuit Judge.

       Juan Magana-Aguirre pled guilty to knowingly possessing with intent to
distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A)(viii). At sentencing, the district court1 correctly calculated the advisory
sentencing guidelines range, considered the sentencing factors set forth in 18 U.S.C.
§ 3553(a) and the defendant’s arguments for a downward variance, and sentenced


      1
        The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
Magana-Aguirre within the advisory guidelines range to a term of 188 months’
imprisonment. Magana-Aguirre appeals his sentence. We affirm.

I.    BACKGROUND

       On July 3, 2007, Arkansas State Police officers conducted a traffic stop on a
Ford Windstar minivan driven by Magana-Aguirre. After obtaining Magana-
Aguirre’s consent to search the vehicle, officers discovered fifteen bundles of
methamphetamine hidden behind the vehicle’s dashboard and arrested Magana-
Aguirre. A federal grand jury returned an indictment charging Magana-Aguirre with
one count of knowingly possessing with intent to distribute more than 500 grams of
a mixture or substance containing methamphetamine, and Magana-Aguirre pled
guilty.

       At sentencing, the district court adopted the factual findings from the
Presentence Investigation Report (“PSR”) and confirmed that the PSR correctly
calculated the advisory guidelines range of 188 to 235 months’ imprisonment, five
years of supervised release, and a $20,000 to $4,000,000 fine. The district court then
heard sentencing arguments from the Government and Magana-Aguirre. The
Government advocated for a sentence within the advisory guidelines range, but
Magana-Aguirre proposed a downward variance to 168 months’ imprisonment
because such a sentence would be “sufficient, but not greater than necessary” under
§ 3553(a). Magana-Aguirre proposed a 168-month term of imprisonment specifically
because that would be the low end of the advisory guidelines range if the district court
disregarded his prior misdemeanor convictions from 1998 and 2004.

     After hearing the parties’ sentencing arguments, the district court rejected
Magana-Aguirre’s proposed downward variance. The district court concluded that
Magana-Aguirre’s prior misdemeanor convictions were properly considered in
imposing his sentence and did not justify a downward variance. The district court

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sentenced Magana-Aguirre to 188 months’ imprisonment, five years of supervised
release, and a fine of $10,000. In imposing this sentence, the district court noted that
the guidelines were advisory and that it had considered the § 3553(a) sentencing
factors.

       Magana-Aguirre appeals his sentence, arguing that the district court committed
procedural error by misapprehending its ability to vary from the advisory guidelines.
Magana-Aguirre bases his argument on two statements by the district court at the
sentencing hearing: (1) the district court’s endorsement of United States Attorney
General Michael Mukasey’s statement that “the sentencing guidelines, when properly
determined, are generally the appropriate place for the sentence to be given” because
the guidelines “were formulated taking into account these considerations in [§
3553(a)], as well as . . . the experience of hundreds of federal judges over decades who
have had great experience in sentencing”;2 and (2) the district court’s comment that
“some of the [defendant’s sentencing arguments may] be taken into account in the
future for changes in [the] guidelines, but so far, they haven’t been.”

II.   DISCUSSION

      We review sentencing appeals under the standard announced by the Supreme
Court in Gall:

      [T]he appellate court must review the sentence under an abuse-of-
      discretion standard. It must first ensure that the district court committed
      no significant procedural error, such as failing to calculate (or


      2
        According to the district court, Attorney General Mukasey delivered this
statement at a meeting of United States district court chief judges in response to a
question about whether the Government would continue to seek sentences within the
advisory guidelines range after Gall v. United States, 552 U.S. ---, 128 S. Ct. 586
(2007).

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      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. Assuming that the district court’s sentencing decision
      is procedurally sound, the appellate court should then consider the
      substantive reasonableness of the sentence imposed under an abuse-of-
      discretion standard.

Gall v. United States, 552 U.S. ---, 128 S. Ct. 586, 597 (2007). Furthermore, we
presume that sentences within the advisory guidelines range are substantively
reasonable. United States v. Saddler, 538 F.3d 879, 890 (8th Cir. 2008).

       Magana-Aguirre’s argument on appeal is nearly identical to an argument made
by the defendant in United States v. Mata-Peres, 478 F.3d 875 (8th Cir. 2007). Mata-
Peres alleged that a brief comment by the district court at sentencing demonstrated
that the district court committed procedural error by “fail[ing] to recognize its ability
to sentence [the defendant] below the advisory Guidelines range.” Id. at 877 (alleging
error based on the district court’s statement, “lack of criminal history is taken into
account in the defendant’s criminal history and, therefore, something that’s taken into
account in the criminal history isn’t a proper basis for a variance”). We rejected Mata-
Peres’s claim, however, because other statements by the district court at sentencing
sufficiently demonstrated that the district court understood that it could deviate from
the advisory guidelines. Id. at 877-78 (affirming the sentence based on the district
court’s remarks, “I don’t believe . . . that a variance under [§ 3553(a)] is appropriate
in this case looking at all of the factors. I don’t find sufficient factors that would
justify a sentence outside of the advisory United States Sentencing Guideline range.”).

       As in Mata-Peres, we find that notwithstanding the two comments cited by
Magana-Aguirre, the district court’s comments at sentencing adequately demonstrate
that the district court was aware of its ability to vary from the advisory sentencing
guidelines range. First, the district court repeatedly noted the advisory nature of the


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sentencing guidelines, expressly stating that the guidelines are “advisory as opposed
to binding and mandatory.” Second, the district court implicitly recognized its power
to vary from the guidelines under § 3553(a) when it said, “I’m not persuaded, based
on what I see here, that this is a case that would warrant a variance from the
guideline.” Third, the district court did, in fact, exercise its ability to vary from the
guidelines when it set Magana-Aguirre’s fine at $10,000, which is below the advisory
guidelines range of $20,000 to $4,000,000. Cf. United States v. Rattoballi, 452 F.3d
127, 139 (2d Cir. 2006). As in Mata-Peres, the district court’s sentencing comments,
taken as a whole, demonstrate that the district court was aware of its ability to vary
from the advisory guidelines and consciously decided not to do so. Thus, we find that
the district court committed no significant procedural error and that the sentence
imposed is not unreasonable. See Saddler, 538 F.3d at 890.

III.   CONCLUSION

       For the foregoing reasons, we affirm Magana-Aguirre’s sentence.
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