                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 07-3686
                                  ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Ismael Ruelas-Mendez, also known as *
Luis Reyna-Gonzalez, also known as      *
Jose Velazquez, also known as Ismael *
Ruelas, also known as Luis Gonzalez, *
Luis Reina Gonsales, agent of, also     *
known as Jose Velasquez, also known *
as Luis Reyna-Gonzales,                 *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: June 12, 2008
                                Filed: February 9, 2009
                                 ___________

Before LOKEN, Chief Judge, COLLOTON, Circuit Judge, and PIERSOL,1 District
      Judge.
                              ___________

COLLOTON, Circuit Judge.




      1
        The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota, sitting by designation.
      Ismael Ruelas-Mendez pled guilty to illegal re-entry to the United States after
a previous deportation, in violation of 8 U.S.C. § 1326(a). The district court2
sentenced him to 46 months’ imprisonment, at the bottom of the advisory guideline
range. We affirm.

       On May 14, 2007, Ruelas-Mendez was arrested for possession of cocaine. An
investigation revealed that he was in the United States unlawfully, and that he had
been deported from the country twice before. The first removal occurred in December
1992, following convictions in Oregon state court for cocaine trafficking offenses, and
the second in August 2002, after a federal conviction in Texas for illegal re-entry.

       In June 2007, a grand jury charged Ruelas-Mendez with unlawful re-entry into
the United States after a previous deportation. He entered a plea of guilty. The
probation office calculated Ruelas-Mendez’s advisory guideline range to be 46 to 57
months’ imprisonment, and the district court adopted the calculation. Ruelas-Mendez
urged the court to impose a sentence below the advisory range, based on USSG
§ 4A1.3 and an alleged overstatement of his criminal history, and based on the factors
set forth in 18 U.S.C. § 3553(a). The court rejected these arguments and sentenced
Ruelas-Mendez to 46 months’ imprisonment.

       On appeal, Ruelas-Mendez argues that the sentence is substantively
unreasonable, because the district court failed to give adequate weight to mitigating
facts, and gave too much weight to the sentencing guidelines and the need for
deterrence. We review the reasonableness of the district court’s sentence under a
deferential abuse-of-discretion standard. Gall v. United States, 128 S. Ct. 586, 591
(2007). Because the court imposed a sentence within the advisory guideline range and
consistent with the recommendation of the Sentencing Commission, we presume that


      2
      The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.

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it is substantively reasonable. United States v. Lincoln, 413 F.3d 716, 717 (8th Cir.
2005); see Rita v. United States, 127 S. Ct. 2456, 2462-68 (2007).

       Ruelas-Mendez contends that the district court gave “no apparent weight to the
unique and devastating circumstances” arising from the fact that his children reside
in the United States and need his financial and emotional support. He also asserts that
the criminal history score under the advisory guidelines greatly overstated his criminal
history and propensity for future crimes. The district court, however, considered these
points and found them unpersuasive grounds to justify a more lenient sentence. The
court expressed “empathy without doubt” to Ruelas-Mendez’s spouse and family, and
acknowledged that the circumstances were “incredibly difficult for them.” But the
court explained that Ruelas-Mendez’s prior conviction for distributing cocaine within
1,000 feet of a school, although dating to 1992, was a serious offense about which the
United States has “a very strong feeling,” that Ruelas-Mendez then violated the
prohibition on re-entry by returning to the United States, and that he then unlawfully
re-entered yet again, at which time he was found in Minnesota with cocaine, rather
than in California with his family. The court explained that it had “run out of a certain
degree of patience when it comes to this kind of conduct,” and that a firm sentence
was warranted. The court also observed that the Sentencing Guidelines, although now
advisory, exist “to avoid unwarranted disparity in sentences so that sentences are
relatively uniform.”

       The district court’s explanation satisfies us that the sentence is substantively
reasonable. Under the deferential abuse-of-discretion standard described in Gall, the
court has substantial latitude to determine how much weight to give the various factors
under § 3553(a). The court’s assessment that Ruelas-Mendez had a serious criminal
history that warranted no more patience was not unreasonable under the
circumstances. Although the guidelines are now advisory, and the Supreme Court has
acknowledged that appellate review for “reasonableness” will not provide the
uniformity that Congress originally sought to secure, see United States v. Booker, 543

                                          -3-
U.S. 220, 263 (2005), the district court was not forbidden to consider the guidelines
and the need to avoid unwarranted sentence disparities when exercising its discretion.
Indeed, the governing statute directs the sentencing court to consider these matters as
two factors among several in the sentencing process. See 18 U.S.C. § 3553(a)(4),
(a)(6). The district court’s decision to place greater emphasis in this case on factors
that favored a sentence within the advisory range, such as the need to deter criminal
conduct, to protect the public, and to avoid unwarranted sentence disparities, than on
other § 3553(a) factors that might favor a more lenient sentence is a permissible
exercise of the considerable discretion available to a sentencing court under the post-
Booker regime.

      The judgment of the district court is affirmed.
                     ______________________________




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