                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-2953
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                       Francisco Samuel Nava Hernandez

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

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

                             Submitted: April 11, 2016
                               Filed: June 30, 2016
                                  [Unpublished]
                                 ____________

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

PER CURIAM.




      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota, sitting by designation.
      Francisco Nava Hernandez appeals from the district court’s2 decision imposing
a sentence of 97 months’ imprisonment for possession with intent to distribute
methamphetamine. He argues (1) that the district court procedurally erred by failing
to explain the reasons for his sentence and (2) that his sentence is substantively
unreasonable because the district court committed a clear error of judgment when
weighing the statutory sentencing factors. We affirm.

      In May 2015, Hernandez pleaded guilty to possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 841(a)(1). The Presentence
Investigation Report (“PSR”) calculated an advisory guidelines range of 97-121
months’ imprisonment. Hernandez did not object to the PSR. Instead, he filed a
motion for a variance, arguing that a lower sentence was warranted because his
guidelines range was the result of poor legal advice in connection with an unrelated
charge. Specifically, Hernandez pleaded guilty to a state DUI charge while his
federal charge was pending. Had he waited to resolve the state charge until after
sentencing in this case, Hernandez argued, his guidelines range likely would have
been 70-87 months. Hernandez urged the district court to sentence him to 70 months’
imprisonment based on the sentencing goals set forth in 18 U.S.C. § 3553(a). The
Government, in contrast, requested a sentence within the advisory guidelines range.

       The district court addressed Hernandez’s variance motion at his sentencing
hearing. The court sentenced Hernandez to a term of 97 months’ imprisonment, the
bottom of the advisory guidelines range. After imposing the sentence, the district
court asked the parties if they had any questions or if they wanted “further elaboration
of [the court’s] statement of reasons.” Hernandez responded that he did not want any
further explanation.



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

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       Hernandez first argues that the district court procedurally erred because the
court failed to adequately explain its reasons for imposing the sentence and because
the court did not address his arguments supporting his variance motion. “‘Procedural
error’ includes ‘failing to calculate (or 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.’” United States v. Scales, 735 F.3d 1048, 1051-52 (8th Cir. 2013) (quoting
United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)).

       Hernandez contends that the district court failed to address his arguments that
a below-guidelines-range sentence was appropriate due to various mitigating factors,
including his lack of substantive criminal history, lack of drug use, history of stable
employment, and strong family support. He also claims that the court did not address
his argument that his guidelines range resulted from bad legal advice and that his
range would have been significantly lower but for this advice. According to
Hernandez, the district court gave little more than a “boilerplate recitation of the
statute.” See United States v. Spencer, 700 F.3d 317, 325 (8th Cir. 2012) (Bright, J.,
dissenting).

       A district court “need not specifically respond to every argument made by the
defendant.” United States v. French, 719 F.3d 1002, 1007 (8th Cir. 2013) (quoting
United States v. Struzik, 572 F.3d 484, 487 (8th Cir. 2009)); see also United States
v. Dace, 660 F.3d 1011, 1014 (8th Cir. 2011) (“District courts generally have
discretion to decide whether to respond to every argument.”). In this case, the district
court heard arguments from both sides and specifically responded to Hernandez’s
arguments. In particular, the court agreed with the Government in rejecting as
implausible Hernandez’s assertions in support of his argument that he would have
been safety-valve eligible if not for the allegedly bad legal advice regarding his state
DUI plea. The court further addressed Hernandez’s argument regarding his state DUI

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plea by noting that “the federal court is not a place to collaterally attack a state court
plea, but if there is . . . a serious mistake . . . that is going to cost a defendant, the
court will take that into consideration under Section 3553(a).” After discussing
Hernandez’s arguments, the court adopted the unobjected-to guidelines calculation
in the PSR and properly took the § 3553(a) factors into consideration. The court “was
justified in relying on ‘the Commission’s own reasoning that a Guidelines sentence
is a proper sentence.’” See Dace, 660 F.3d at 1014 (quoting Rita v. United States,
551 U.S. 338, 356 (2007)).

        However, we need not decide whether the district court’s statements were
adequate to explain the sentence because Hernandez explicitly waived any argument
that the explanation was inadequate. After the district court announced his sentence,
the court explicitly gave Hernandez an opportunity to request “any further elaboration
of [its] statement of reasons.” Hernandez declined. By doing so, Hernandez “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. Dieguez, No. 15-3371, 2016 WL 3031077, at *3
(8th Cir. May 27, 2016); see also United States v. Jones, 770 F.3d 710, 713 (8th Cir.
2014) (holding that defendant waived his rights to testify and to question witnesses
when he “declined the district court’s invitation” to do so). Because Hernandez
waived this argument, we will not sustain his procedural challenge to the district
court’s sentencing explanation.

       Hernandez also argues that his sentence was substantively unreasonable. “We
review a challenge to the substantive reasonableness of a sentence for an abuse of
discretion.” United States v. Luleff, 574 F.3d 566, 569 (8th Cir. 2009). In this
review, we consider “the totality of the circumstances, including the extent of any
variance from the Guidelines range.” Feemster, 572 F.3d at 461 (quoting Gall v.
United States, 552 U.S. 38, 51 (2007)). “A sentence is substantively unreasonable ‘if
the district court fails to consider a relevant factor that should have received

                                           -4-
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.’” United States v. Boelter, 806 F.3d 1134, 1136 (8th Cir.
2015) (per curiam) (quoting United States v. Lozoya, 623 F.3d 624, 626 (8th Cir.
2010)).

        Based on the record, the district court properly considered the § 3553(a) factors
in sentencing Hernandez. Hernandez argues that the district court abused its
discretion by not giving appropriate weight to various mitigating factors and by
giving a “boilerplate statement” explaining his sentence. However, a district court
does not abuse its discretion “[s]imply because [it] weigh[s] the relevant factors more
heavily than [the defendant] would prefer.” United States v. Richart, 662 F.3d 1037,
1054 (8th Cir. 2011); see also United States v. Farmer, 647 F.3d 1175, 1180 (8th Cir.
2011) (“A district court’s choice to assign relatively greater weight to the nature and
circumstances of the offense than to the mitigating personal characteristics of the
defendant is well within its wide latitude in weighing relevant factors.”). Hernandez
fails to rebut the presumption of reasonableness that attaches to his within-guidelines-
range sentence. See United States v. Linderman, 587 F.3d 896, 901 (8th Cir. 2009).

      For the foregoing reasons, we affirm Hernandez’s sentence.

                        ______________________________




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