                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 06-1855
                               ________________

United States of America,               *
                                        *
            Appellant,                  *
                                        *       Appeal from the United States
      v.                                *       District Court for the
                                        *       Southern District of Iowa.
Juan Morales-Uribe,                     *
                                        *
            Appellee.                   *

                               ________________

                         Submitted: November 15, 2006
                            Filed: December 18, 2006
                               ________________

Before GRUENDER, JOHN R. GIBSON and BOWMAN, Circuit Judges.
                        ________________

GRUENDER, Circuit Judge.

      Juan Morales-Uribe pled guilty to one count of conspiracy to distribute
methamphetamine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). After
determining a total offense level of 31 and an advisory guidelines sentencing range
of 108 to 135 months, the district court sentenced Morales-Uribe to 60 months’
imprisonment, approximately 44 percent below the bottom of the advisory range. For
the reasons stated below, we vacate Morales-Uribe’s sentence and remand for
resentencing.
I.    BACKGROUND

        On January 25, 2005, law enforcement officers from the Mid-Iowa Narcotics
Enforcement Task Force received information from a confidential informant that an
individual named Diego was dealing methamphetamine in multi-ounce to pound
quantities in Des Moines, Iowa. The informant reported that Diego had sold him at
least three pounds of methamphetamine between August 2004 and January 2005. Law
enforcement officers subsequently identified Diego as Juan Morales-Uribe. Between
January 25, 2005, and February 24, 2005, the informant and the officers made three
controlled purchases from Morales-Uribe. These methamphetamine purchases, as
well as the purchases made independently by the informant prior to January 25, 2005,
totaled 1.46 kilograms of a substance containing methamphetamine and 57.7 grams
of “actual,” or pure, methamphetamine.

       The task force executed search warrants at Morales-Uribe’s residences on
February 24, 2005.        These searches uncovered additional quantities of
methamphetamine, equipment used in methamphetamine production and serialized
currency used by the informant during the controlled purchases. The officers arrested
Morales-Uribe, and he was subsequently charged with one count of conspiracy to
distribute methamphetamine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A),
among other charges. Morales-Uribe pled guilty to the conspiracy count on October
14, 2005, and the other charges were subsequently dismissed.

       At Morales-Uribe’s sentencing hearing, the district court and parties accepted
without objection the presentence investigation report (“PSR”). The PSR assigned
Morales-Uribe a base offense level of 34. His offense level was then increased by two
levels for using a minor in connection with the conspiracy. See U.S.S.G. § 3B1.4.
However, Morales-Uribe received a three-level reduction for acceptance of
responsibility and an additional two-level reduction under the sentencing guidelines
safety-valve provision. U.S.S.G. §§ 2D1.1(b)(9), 5C1.2. This resulted in a total

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offense level of 31. With a criminal history category of I, the district court determined
Morales-Uribe’s advisory guidelines range to be 108 to 135 months. The district court
also found Morales-Uribe to be safety-valve eligible under 18 U.S.C. § 3553(f),
thereby freeing Morales-Uribe from the statutory mandatory minimum of 120 months’
imprisonment. Citing its consideration of the 18 U.S.C. § 3553(a) factors, the district
court varied downward and sentenced Morales-Uribe to 60 months’ imprisonment.
Although the district court recognized that Morales-Uribe was “a sophisticated and
knowledgeable methamphetamine dealer on a significant scale,” it justified the
downward variance by stating that Morales-Uribe was eligible for the § 3553(f)
safety-valve as a first-time offender whose crime did not involve violence, that he was
not a manager or leader of the conspiracy, that a portion of the drugs attributed to him
resulted from “six controlled purchases” by law enforcement authorities, and that the
Government would deport Morales-Uribe following his term of imprisonment.
Additionally, the district court appears to have considered Morales-Uribe’s
underprivileged background and his testimony at sentencing that his motivation for
this crime was to gain money to provide surgery for his son’s cancer.

II.   DISCUSSION

       Because there is no dispute concerning the appropriate application of the
guidelines, we need only determine whether the sentence imposed by the district court
is reasonable. United States v. Beal, 463 F.3d 834, 836 (8th Cir. 2006). “We review
the reasonableness of the ultimate sentence under an abuse of discretion standard,
measuring the extent of a district court’s variance from the advisory Guidelines range
against the statutory factors contained in § 3553(a).” United States v. Hodge, Nos. 05-
3633/05-3844, slip op. at 7 (8th Cir. Nov. 22, 2006). A district court abuses its
discretion and applies an unreasonable sentence where it:

      fails to consider a relevant factor that should have received significant
      weight, gives significant weight to an improper or irrelevant factor, or
      considers only appropriate factors but nevertheless commits a clear error

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      of judgment by arriving at a sentence that lies outside the limited range
      of choice dictated by the facts of the case.

United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005), cert. denied, --- U.S. ---,
126 S. Ct. 276 (2005). A sentence imposed within the advisory guidelines range is
presumptively reasonable as the guidelines take the § 3553(a) factors into account in
fashioning an advisory sentencing range. United States v. McDonald, 461 F.3d 948,
952-53 (8th Cir. 2006). Thus, “the farther the district court varies from the
presumptively reasonable guidelines range, the more compelling the justification
based on the § 3553(a) factors must be.” United States v. McMannus, 436 F.3d 871,
874 (8th Cir. 2006).

        The district court identified five possible reasons to support its decision to vary
downward to a sentence of 60 months’ imprisonment: (1) the presence of the same
factors that made Morales-Uribe eligible for the § 3553(f) safety-valve, including that
this was his first offense, the offense did not involve violence and he was not the
leader of the conspiracy; (2) the amount of drugs used to calculate his base offense
level was substantially the result of law-enforcement-controlled purchases; (3) he
faced deportation upon his release from prison; (4) he had lived an underprivileged
life; and (5) his motivation for his crime was to gain money to provide treatment for
his son’s cancer. The 48-month, or 44 percent, downward variance from the bottom
of the advisory guidelines range is a substantial variance and thus requires compelling
justification. See United States v. Gatewood, 438 F.3d 894, 896 (8th Cir. 2006)
(stating that a 27-month, or 43 percent, variance below the bottom of the advisory
guidelines range is a substantial variance). We find that while the district court
considered appropriate factors in imposing the sentence, the district court committed
a clear error of judgment in weighing these factors.

       First, the district court justified its downward variance by considering the same
facts that it considered in finding Morales-Uribe eligible for the § 3553(f) safety-
valve. We have stated that “substantial variances based upon factors already taken

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into account in a defendant’s guidelines sentencing range seriously undermine
sentencing uniformity.” McDonald, 461 F.3d at 954. Additionally, we have
specifically held that facts taken into account in applying the § 3553(f) safety-valve
cannot serve as compelling justification for a substantial variance. United States v.
Claiborne, 439 F.3d 479, 481 (8th Cir. 2006), cert. granted, --- U.S. ---, 127 S. Ct.
551 (2006). The district court considered Morales-Uribe’s lack of criminal history,
the lack of violence associated with his crime and his non-leadership role in the
conspiracy in its application of § 3553(f), relieving him of the 120-month statutory
mandatory minimum sentence. See id. at 481 (“Claiborne’s lack of criminal history
was taken into account when the safety valve eliminated an otherwise applicable
mandatory minimum sentence.”). Without § 3553(f), Morales-Uribe’s advisory
guidelines range would have effectively been adjusted from 108 to 135 months to 120
to 135 months to reflect the mandatory minimum. U.S.S.G. § 5G1.1.

       In addition to being relieved from the mandatory minimum, Morales-Uribe’s
safety-valve eligibility provided him the additional benefit of reducing his advisory
sentencing guidelines range. The same factors that allowed him to avoid the
mandatory minimum sentence under § 3553(f) were also taken into account in
determining Morales-Uribe’s total offense level of 31, with an advisory guidelines
range of 108 to 135 months. Because Morales-Uribe qualified for safety-valve relief,
he received a two-level reduction from his base offense level. See 18 U.S.C. §
3553(f); U.S.S.G. §§ 2D1.1(b)(9), 5C1.2. Without this reduction, Morales-Uribe’s
total offense level would have been 33, with a resulting advisory guidelines range of
135 to 168 months. Thus, Morales-Uribe’s lack of criminal history, the fact that no
violence accompanied his offense and the fact that he was not the leader of the
conspiracy already had reduced significantly his advisory guidelines range. These
identified factors therefore cannot support a substantial downward variance.1

      1
        Additionally, because Morales-Uribe was assigned a criminal history category
of I, it is inappropriate to use his lack of criminal history to provide compelling
justification for his substantial variance. United States v. Myers, 439 F.3d 415, 418
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       Second, the district court clearly erred when it found that law enforcement
officials made six controlled purchases from Morales-Uribe. Although the district
court correctly stated that “some of the drug quantities attributed to the Defendant
were the result of government-controlled drug deals,” it is undisputed by the parties
that only three controlled purchases were made by law enforcement officials.2
Further, to the extent that the district court implied that the law enforcement purchases
increased Morales-Uribe’s advisory guidelines range, the second and third controlled
purchases of methamphetamine had no effect on Morales-Uribe’s advisory guidelines
range. Because Morales-Uribe dealt in both mixtures containing methamphetamine
and actual methamphetamine, all drug quantities sold by Morales-Uribe were
converted to their marijuana equivalents before determining the advisory guidelines
sentencing range. U.S.S.G. § 2D1.1, cmt. n.10. The earlier independent purchases
made from Morales-Uribe by the informant and the first controlled purchase made by
law enforcement agents using the informant resulted in 3,554 kilograms of marijuana
equivalent. This quantity alone easily placed Morales-Uribe at a base offense level of
34, which is applicable for 3,000 to 10,000 kilograms of marijuana. U.S.S.G. §
2D1.1(c)(3). Thus, the two additional controlled purchases of methamphetamine by
law enforcement officials, which amounted to 519.2 kilograms of marijuana
equivalent and increased the total to 4,073.2 kilograms of marijuana equivalent, had
no effect on the determination of Morales-Uribe’s base offense level. Because the
district court clearly erred in determining the number of controlled purchases and
because the additional controlled purchases did not affect Morales-Uribe’s advisory


(8th Cir. 2006) (“Inasmuch as a guidelines sentence reflects a defendant’s criminal
history, a wide divergence from the guidelines sentence based solely on this single
criterion would conflict with the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of similar
conduct.”).
      2
       Although the informant made several purchases from Morales-Uribe between
August 2004 and January 2005, there is no evidence that these purchases were made
in conjunction with law enforcement activities.
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guidelines range, it was clear error for the district court to justify the downward
variance by reasoning that controlled purchases contributed to an increase in Morales-
Uribe’s advisory sentencing guidelines range.

       Third, the district court specifically considered that following Morales-Uribe’s
imprisonment, the Government would deport him to Mexico. In imposing a sentence,
a district court must consider the need for the sentence “to protect the public from
further crimes of the defendant.” § 3553(a)(2)(C). Arguably, the need to protect the
public from a defendant may be reduced in a case where, upon immediate release from
incarceration, the Government will deport the defendant. See, e.g., United States v.
Zapata-Trevino, 378 F. Supp. 2d 1321, 1328 (D.N.M. 2005), United States v.
Ramirez-Ramirez, 365 F. Supp. 2d 728, 733 (E.D. Va. 2005). Assuming that Morales-
Uribe’s impending deportation could provide some justification for a downward
variance in appropriate circumstances, it certainly would not support a substantial
downward variance in this case. The PSR, to which Morales-Uribe did not object,
indicates that he has attempted to enter the United States illegally on three separate
occasions. Two of these attempts, one being successful, occurred even after the
Government deported him on October 27, 1999. This indicates strongly that
deportation will not protect the people of the United States from further crimes by
Morales-Uribe. Under these facts, the impending deportation of Morales-Uribe would
support little, if any, variance.

       Finally, the district court mentioned both Morales-Uribe’s underprivileged
background, which included growing up in a poor family that worked in the fields of
Zacatecas, Mexico, and Morales-Uribe’s motivation for his crime, noting that
Morales-Uribe “dealt in drugs because of [his] son’s condition . . . .” While these are
appropriate considerations in assigning a sentence, see 18 U.S.C. § 3553(a) (“The
court, in determining the particular sentence to be imposed, shall consider (1) the
nature and circumstances of the offense and the history and characteristics of the



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defendant.”), they cannot by themselves justify a variance of this substantial
magnitude.

III.   CONCLUSION

      For the foregoing reasons, we vacate Morales-Uribe’s sentence as unreasonable
and remand for resentencing consistent with this opinion.
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