                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 08-2769
                                 ________________


United States of America,                  *
                                           *
             Appellee,                     *
                                           *       Appeal from the United States
      v.                                   *       District Court for the
                                           *       Western District of Arkansas.
Francisco Loredo-Olvera,                   *
                                           *       [UNPUBLISHED]
             Appellant.                    *

                                  _______________

                              Submitted: March 9, 2009
                                  Filed: May 15, 2009
                                ________________

Before GRUENDER, ARNOLD and BENTON, Circuit Judges.
                       ________________

PER CURIAM.

       In April 2008, Francisco Loredo-Olvera pled guilty to illegal reentry after being
deported in violation of 8 U.S.C. § 1326(a). Because he was previously convicted of
an aggravated felony—assault causing serious bodily injury to a child—and was
previously deported after that conviction, Loredo-Olvera faced a maximum term of
imprisonment of twenty years. See 8 U.S.C. § 1326(b)(2) (providing that an alien who
violates § 1326(a) and was previously deported after being convicted of an aggravated
felony is subject to a maximum term of imprisonment of twenty years).
       The district court1 found that Loredo-Olvera’s base offense level under §
2L1.2(a) of the advisory sentencing guidelines was 8 and that Loredo-Olvera was
eligible for a 16-level enhancement under § 2L1.2(b)(1)(A)(ii) because he was
previously deported after being convicted of a felony crime of violence. After
applying a 3-level reduction for acceptance of responsibility under § 3E1.1, the district
court correctly determined that Loredo-Olvera’s total offense level was 21. Since
Loredo-Olvera’s criminal history placed him in category V, his advisory sentencing
guidelines range was 70 to 87 months.

        At sentencing, Loredo-Olvera’s girlfriend, Tammy Martinez, testified that she
and Loredo-Olvera fled their home in Juarez, Mexico, because they feared retribution
from Loredo-Olvera’s former gang after he refused to perform a criminal “mission.”
According to Martinez, she and Loredo-Olvera entered the United States at El Paso,
Texas, but eventually traveled to Arkansas to attend her father’s funeral. Instead of
returning to El Paso, Martinez and Loredo-Olvera decided to stay in Arkansas, where
Loredo-Olvera was arrested in February 2008, because they thought they would be
safer there. Loredo-Olvera reiterated Martinez’s account of the events surrounding
his illegal reentry, expressed remorse for breaking the law, and asked the district court
to “please help [him]” because he had “no other place to go.”

       Loredo-Olvera’s counsel asked the district court to consider imposing a
sentence of 60 months’ imprisonment because, as a former gang member with
identifying tattoos, Loredo-Olvera would have “difficulty dealing with prison life.”
Although counsel did not specify whether he was requesting a downward departure
or a downward variance, the court noted that the distinction made no difference in this
case because Loredo-Olvera’s argument for a sentence below the advisory guidelines
range was unpersuasive. In particular, the court stated that it did not think Loredo-


      1
        The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.

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Olvera’s past membership in a criminal organization warranted leniency. On the
contrary, the court indicated that Loredo-Olvera’s extensive criminal history “might
warrant a sentence at the higher end of the guideline range, or even above it.” After
considering the sentencing factors set out in 18 U.S.C. § 3553(a), the court sentenced
Loredo-Olvera to 70 months’ imprisonment, the bottom of the applicable guidelines
range.

      On appeal, Loredo-Olvera challenges only the substantive reasonableness of his
sentence, which we review for abuse of discretion. See United States v. Phelps, 536
F.3d 862, 869 (8th Cir. 2008) (citing Gall v. United States, 552 U.S. ---, 128 S. Ct.
586, 597 (2007)), cert. denied, 555 U.S. ---, 129 S. Ct. 1390 (2009). Under this
deferential standard, we accord a sentence within the applicable guidelines range a
“presumption of substantive reasonableness on appeal.” Id. (quoting United States v.
Robinson, 516 F.3d 716, 717 (8th Cir. 2008)).

       Loredo-Olvera argues that his sentence is unreasonable for three principal
reasons. First, Loredo-Olvera contends that the district court gave insufficient weight
to one of the sentencing factors set out in § 3553(a)—namely, “the nature and
circumstances of the offense and the history and characteristics of the defendant.” See
§ 3553(a)(1). According to Loredo-Olvera, the court was “dismissive” of the
evidence that Loredo-Olvera presented about the threat he faced from members of his
former gang in Mexico. We disagree. The record shows that the court listened to the
evidence that Loredo-Olvera presented, as well as Loredo-Olvera’s pleas for “help”
and his counsel’s suggestion that a sentence of 60 months’ imprisonment would be
appropriate. While the court noted that it was uncertain “why [it was] hearing all of
this” since it lacked authority either to order Loredo-Olvera deported or to grant
Loredo-Olvera “sanctuary” in the United States, the court went on to explain in detail
why it was not persuaded to grant a departure or variance by the testimony about
Loredo-Olvera’s flight from his home in Juarez or the assertion that prison life would
be particularly difficult for him. Needless to say, the fact that the court had

                                         -3-
discretionary authority to grant a departure or variance does not mean that it was
required to do so based on a request for leniency that it found unpersuasive. See, e.g.,
United States v. Wallace, 531 F.3d 504, 507 (7th Cir. 2008) (“United States v.
Booker . . . gave district judges extra discretion without holding that they must be
lenient.”). In the end, the court apparently gave some weight to mitigating
considerations, for it imposed a sentence at the bottom of the applicable guidelines
range after indicating that Loredo-Olvera’s extensive criminal history might otherwise
warrant a substantially higher sentence. Thus, we conclude that the district court did
not commit a clear error of judgment in weighing the nature and circumstances of the
offense and the history and characteristics of the defendant against the other
sentencing factors set out in § 3553(a).

       Next, Loredo-Olvera contends that the district court gave excessive weight to
a different sentencing factor—namely, “the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of
similar conduct.” See § 3553(a)(6). According to Loredo-Olvera, the court’s
statement that “it would be bothersome” to impose disparate terms of imprisonment
on two defendants with the same guidelines range suggests that the court did not make
an individualized assessment of the circumstances present in this case. Again, we
disagree. The record shows that the court properly considered the need to avoid
unwarranted sentence disparities among similarly situated defendants while expressly
recognizing that it had the authority to sentence Loredo-Olvera to a term of
imprisonment below the advisory guidelines range. As we have held, Booker did not
forbid sentencing courts from considering the need to avoid unwarranted sentence
disparities, which is, after all, one of the factors enumerated in § 3553(a). United
States v. Ruelas-Mendez, 556 F.3d 655, 658 (8th Cir. 2009). Thus, we conclude that
the district court did not abuse its “considerable discretion” by giving more weight to
this and other factors that supported a sentence within the applicable guidelines range
than to factors that might have favored a more lenient sentence. See id.



                                          -4-
       Finally, Loredo-Olvera contends that the Sentencing Commission did not
“exercise its characteristic institutional role in crafting [§ 2L1.2],” which is
purportedly based on “statutory directives” rather than an “empirical approach.”
Assuming, however, that the district court was permitted to disregard § 2L1.2 on
policy grounds, we have made clear that Kimbrough v. United States, 552 U.S. ---,
128 S. Ct. 558 (2007), and Spears v. United States, 555 U.S. ---, 129 S. Ct. 840 (2009)
(per curiam), “do not hold that a district court must disagree with any sentencing
guideline, whether it reflects a policy judgment of Congress or the Commission’s
‘characteristic’ empirical approach,” United States v. Barron, 557 F.3d 866, 871 (8th
Cir. 2009). Nevertheless, Loredo-Olvera asks us to take the district court’s alleged
“Kimbrough error” into consideration as “part of the totality of the circumstances in
determining whether the district court committed a clear error of judgment in
weighing the appropriate § 3553(a) factors.” Though we find that the district court
did not commit an error under Kimbrough or Spears, see Barron, 557 F.3d at 871, we
have given careful attention to the circumstances of this case, including Loredo-
Olvera’s lengthy criminal record, his history of violent conduct, and his repeated
violations of U.S. immigration laws. In light of these circumstances, we are satisfied
that the district court did not abuse its discretion in sentencing Loredo-Olvera to a
term of imprisonment at the bottom of the presumptively reasonable guidelines range.
See Ruelas-Mendez, 556 F.3d at 658.




                                         -5-
      For the foregoing reasons, we affirm Loredo-Olvera’s sentence of 70 months’
imprisonment.2
                       _____________________________




      2
        We decline to consider a fourth argument put forward by Loredo-Olvera for
the first time in a letter filed under Rule 28(j) of the Federal Rules of Appellate
Procedure more than two weeks after this case had been submitted—namely, that the
district court improperly treated Loredo-Olvera’s request for a downward variance as
a request for a downward departure. See, e.g., United States v. Greene, 513 F.3d 904,
906 (8th Cir. 2008) (“This Court routinely enforces the doctrine of waiver and
declines to address arguments a party fails to raise in its opening brief.”). Although
Loredo-Olvera’s letter relies on our recent decision in United States v. Chase, 560
F.3d 828 (8th Cir. 2009), Chase was not the first case to note the distinction between
departures and variances. Cf. United States v. Robinson, 454 F.3d 839, 842 (8th Cir.
2006) (“We recognize that pre-Booker departures and post-Booker variances are not
the same. . . . There may well be cases that would not justify a departure under the
Guidelines but which are appropriate for a variance.”). Accordingly, the fact that
Chase was decided after this case had been submitted does not provide a good excuse
for Loredo-Olvera’s belated attempt to raise an argument that he omitted from his
opening brief. See Fed. R. App. P. 28(j) (providing that a letter “must state the
reasons” for advising the court of a supplemental citation, “referring either to [a] page
of the brief or to a point argued orally”).

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