                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
            ___________

            No. 09-2999
            ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         *
      v.                                 *
                                         *
Hector Loaiza-Sanchez,                   *
                                         *
      Defendant - Appellant.             *
           ___________
                                             Appeals from the United States
            No. 09-3003                      District Court for the
            ___________                      Northern District of Iowa.

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         *
      v.                                 *
                                         *
Jose Luis Juarez-Gonzalez,               *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: June 18, 2010
                                  Filed: September 22, 2010
                                   ___________

Before LOKEN, BRIGHT, and GRUENDER, Circuit Judges.
                            ___________
LOKEN, Circuit Judge.

        Hector Loaiza-Sanchez and Jose Luis Juarez-Gonzalez pleaded guilty to
conspiring to distribute and possessing with intent to distribute a substantial quantity
of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846.
After determining an advisory guidelines sentencing range of 168 to 210 months for
each defendant, the district court1 concluded based upon the sentencing factors in 18
U.S.C. § 3553(a) that a sentence within that range was appropriate. It then imposed
a sentence above the bottom of the range because each defendant committed his
offenses while in the country illegally. Loaiza-Sanchez and Juarez-Gonzalez appeal
their sentences of 188 and 200 months in prison, respectively, arguing primarily that
“alienage” is an improper sentencing factor. We affirm.

       When reviewing the sentence imposed by a district court, we “first ensure that
the district court committed no significant procedural error, such as 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.” If the
sentence is procedurally sound, we “then consider the substantive reasonableness of
the sentence imposed under an abuse-of-discretion standard.” Gall v. United States,
552 U.S. 38, 51 (2007).

      Loaiza-Sanchez and Juarez-Gonzalez contend that the district court based their
sentences on an improper sentencing factor, their status as illegal aliens. In
considering this contention, we begin with the relevant statute, 18 U.S.C. § 3661:

            No limitation shall be placed on the information concerning the
      background, character, and conduct of a person convicted of an offense


      1
       The HONORABLE MARK W. BENNETT, United States District Judge for
the Northern District of Iowa.

                                           -2-
      which a court of the United States may receive and consider for the
      purpose of imposing an appropriate sentence.

We then turn to the relevant guidelines provision, U.S.S.G. § 1B1.4:

      In determining the sentence to impose within the guideline range, or
      whether a departure from the guidelines is warranted, the court may
      consider, without limitation, any information concerning the background,
      character and conduct of the defendant, unless otherwise prohibited by
      law. See 18 U.S.C. § 3661.2

A relevant prohibition is found in the last sentence of 28 U.S.C. § 994(d), part of the
Sentencing Reform Act of 1984 that enacted the then-mandatory Guidelines:

      The Commission shall assure that the guidelines and policy statements
      are entirely neutral as to the race, sex, national origin, creed, and
      socioeconomic status of offenders.

The Commission reflected this prohibition in U.S.S.G. § 5H1.10, p.s. Loaiza-Sanchez
invokes this prohibition in suggesting that taking illegal alien status into account is
national origin discrimination because the majority of illegal aliens are Hispanics.
However, “a person’s legal status as a deportable alien is not synonymous with
national origin.” United States v. Lopez-Salas, 266 F.3d 842, 846 n.1 (8th Cir. 2001).
Thus, the district court committed no procedural error when, consistent with these
statutes and guideline provisions, it considered the illegal alien status of Loaiza-
Sanchez and Juarez-Gonzalez.


      2
        These legislative pronouncements are consistent with the Supreme Court’s
long-standing approach to sentencing: “The sentencing court or jury must be
permitted to consider any and all information that reasonably might bear on the proper
sentence for the particular defendant, given the crime committed.” Wasman v. United
States, 468 U.S. 559, 563 (1984).

                                         -3-
       Ignoring these governing statutes and guidelines provisions, Loaiza-Sanchez
and Juarez-Gonzalez base their primary argument on our statement in United States
v. Onwuemene that “sentencing an offender on the basis of factors such as race,
national origin, or alienage violates the Constitution.” 933 F.2d 650, 651 (8th Cir.
1991) (emphasis added). That statement relied on more limited statements in pre-
Guidelines sentencing decisions, United States v. Borrero-Isaza, 887 F.2d 1349, 1352
(9th Cir. 1989), and United States v. Gomez, 797 F.2d 417, 419 (7th Cir. 1986).
Taken literally, as Loaiza-Sanchez and Juarez-Gonzalez urge, the statement in
Onwuemene is simply wrong. The Supreme Court has expressly rejected “the claim
that ‘illegal aliens’ are a ‘suspect class.’” Plyler v. Doe, 457 U.S. 202, 219 n.19
(1982). To the contrary, the Court has explained:

             In the exercise of its broad power over naturalization and
      immigration, Congress regularly makes rules that would be unacceptable
      if applied to citizens. The exclusion of aliens and the reservation of the
      power to deport have no permissible counterpart in the Federal
      Government’s power to regulate the conduct of its own citizenry. The
      fact that an Act of Congress treats aliens differently from citizens does
      not in itself imply that such disparate treatment is “invidious.”

Mathews v. Diaz, 426 U.S. 67, 79-80 (1976).

       From the perspective of what a sentencing court may constitutionally consider,
the correct view of the issue was stated by Judge Richard Arnold, with his customary
incisiveness, in rejecting the argument that a defendant should have been granted a
downward departure to offset “the alienage-based increased severity of his sentence”:

      Defendant entered this country illegally. Thereafter, he committed
      aggravated felonies. He is therefore concededly deportable as a matter
      of law. As a consequence of his deportability, he is . . . subjected to
      more onerous conditions of confinement.           There is nothing
      unconstitutional or unfair about these consequences, all of which have

                                         -4-
      followed upon the defendant’s voluntary acts. We cannot agree that he
      is given a more onerous sentence solely on the basis of alienage. . . .
      [T]he result is simply the permissible consequence of two things: the
      commission of the crimes and the defendant’s status under the
      immigration statutes.

United States v. Navarro, 218 F.3d 895, 897-98 (8th Cir. 2000); accord United States
v. Bahena, 223 F.3d 797, 807 (8th Cir. 2000), cert. denied, 531U.S. 1181 (2001).

       A defendant’s illegal entry into this country is a voluntary act. It is also
criminal misconduct. Like other prior criminal conduct, whether or not related to the
offense of conviction, it is part of “the history and characteristics of the defendant”
that the district court “shall consider” in imposing an appropriate sentence, 18 U.S.C.
§ 3553(a)(1), and it may be relevant in a particular case to the factors enumerated in
§ 3553(a)(2). See, e.g., United States v. Jenners, 537 F.3d 832, 835-36 (8th Cir. 2008)
(court may consider uncharged criminal conduct). It is not an impermissible
sentencing factor, and therefore the district court did not abuse its discretion by
considering it.

       Loaiza-Sanchez further argues that the district court committed procedural error
by treating the guidelines as mandatory; failing to consider the § 3553(a) factors;
failing to adequately explain the basis for the sentence imposed; and failing to
properly consider his request for a downward variance. After careful review of the
sentencing record, we conclude these contentions are without merit. See generally
United States v. Feemster, 572 F.3d 455, 463-64 (8th Cir. 2009) (en banc);
United States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009). As in United States v.
Lewis, 593 F.3d 765, 773 (8th Cir.), cert. denied, 130 S. Ct. 3375 (2010), the district
court considered Loaiza-Sanchez’s arguments for a downward variance but
appropriately exercised its discretion in rejecting them.




                                         -5-
       Finally, Loaiza-Sanchez and Juarez-Gonzalez argue that their sentences are
substantively unreasonable. As the sentences fall within the advisory guidelines
ranges, they are presumptively reasonable. Loaiza-Sanchez and Juarez-Gonzalez
concede that they entered the United States illegally, misconduct that was not taken
into account in determining the advisory ranges. The district court did not abuse its
discretion by sentencing them above the bottom of those ranges.

      The judgments of the district court are affirmed.

BRIGHT, Circuit Judge, dissenting.

       I respectfully dissent. In my view, increasing the sentence of a defendant
because he is in the country illegally makes little sense when the defendant will be
deported after serving his term of imprisonment. As I previously wrote in United
States v. Chavez, 230 F.3d 1089, 1092 (8th Cir. 2000) (Bright, J., concurring), long
sentences for illegal aliens punish not only the defendant but the American taxpayer.
“It would be more sensible to give . . . a stiff, but shorter sentence and then to
promptly deport him . . . as an example to other would-be drug dealers.” Id.

       Current data on our nation’s prison population and its associated costs
evidences this point. Nonviolent offenders constitute over 60% of the prison and jail
population. John Schmitt, Kris Warner & Sarika Gupta, The High Budgetary Cost of
Incarceration, Ctr. for Econ. & Policy Research, 1 (June 2010),
http://www.cepr.net/documents/publications/incarceration-2010-06.pdf. Nonviolent
drug offenders account for 25% of all offenders behind bars. Id. Our country
currently spends over $75 billion per year on corrections. Id. at 2. Reducing the
number of nonviolent offenders in our prisons and jails by half would save our nation
$16.9 billion per year. Id. It would save the federal government $2.1 billion per year.
Id. at 11. In this case, there is no record of violent conduct and no need to heavily
punish the defendants or to burden the American taxpayer.

                                         -6-
       Moreover, there are approximately 11.9 million unauthorized immigrants living
in the United States. Jeffrey S. Passel, A Portrait of Unauthorized Immigrants in the
United States, Pew Hispanic Ctr., i (April 14, 2009),
http://pewhispanic.org/files/reports/107.pdf. The vast majority of whom come to this
country seeking employment and a better life. See generally id. The record here
contains no evidence that these defendants came to the United States for the purpose
of dealing drugs. And it simply seems unfair to punish these defendants differently
than a United States citizen who commits the same crime.

       Finally, the defendants’ unlawful entry into this country does not warrant the
penalty imposed by the district court. The maximum penalty for improper entry in
violation of 8 U.S.C. § 1325 is six months’ imprisonment. Here the district court
increased each defendants’ sentence by twenty months solely on the basis of
defendants’ unlawful entry. With respect to Juarez-Gonzalez, the district court stated,
“I’m going to increase the sentence up to 200 months [from 180] because the
defendant was in the country illegally and committed a crime while he was in the
country illegally . . . .” With respect to Loaiza-Sanchez, the court stated, “I probably
would have sentenced you right around the bottom of the guideline range, but I’m
increasing it to 188 months [from 168] because you were an illegal guest in the United
States and you committed a serious drug offense . . . .” Though the sentences
remained within the guideline range for defendants’ drug offenses, the court
effectively imposed a term of imprisonment for illegal entry over three times the
length of the maximum penalty allowed by statute.

       Again, these are nonviolent drug offenders, who did not enter this country to
traffic in narcotics, and who face deportation. Even if considering alienage is a
permissible sentencing factor, the defendants’ illegal entry does not warrant the harsh
penalties imposed here.
                        ______________________________



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