Government Appeals Low Sentence for Frequent Illegal Immigrant

following his guilty plea to cir. 2009); united states v. garcia, 512 f.3d 1004, 1006 (8th cir. 2008). and, finally, based upon his history, the government claimed no doubt whatsoever ___________ according to bolivar-diaz he was born in guanjuato, mexico, on october 21, diaz is an illegal alien he will not be able to avail himself of certain prison benefits in other areas, a lower sentence lessens disparity, and, finally; (7) because bolivar- -4- submitted: november 17, 2009 ___________ ___________ -2- month prison sentence imposed by the district court1 years); (3) he has never lived as an adult in mexico (although he is a citizen of that were used as a basis for variances, it would only increase sentencing disparities. our standard of review, bolivar-diaz's failure to object at the sentencing hearing does of 8 u.s.c. § 1326(a) and (b)(2). this indictment followed a lifelong history of illegal 3553(a) factors." united states v. miller, 557 f.3d 910, 916 (8th cir. 2009). a diaz. * sentence imposed if he alleges only that the district court erred in weighing the § crimes ranging from disorderly conduct to possession of marijuana, none of which substantively reasonable. united states v. ruelas-mendez, 556 f.3d 655, 657 (8th our task is to determine whether the district court abused its discretion by court impose a sentence between twelve and eighteen months­a great reduction from 1 id. at 900-01. "a defendant need not object to preserve an attack on the length of the * district court for the western litany gives the court a clear picture of bolivar-diaz's consistent pattern and practice the honorable fernando j. gaitan, jr., chief judge, united states district in support of a sentence within the advisory guidelines range, the government * sentence that is within the applicable guidelines range may be presumed to be gilberto bolivar-diaz, * imposing a sentence that is substantively unreasonable. united states v. linderman, fifties; (2) he has a daughter and grandchild in the united states (although we note onappeal,gilbertobolivar-diazchallengesthereasonablenessofhisforty-one united states of america, * substantively unreasonable and that the district court did not abuse its discretion. punishment and protect the public from further crimes by bolivar-diaz. notably, the before melloy, beam, and gruender, circuit judges. of districts offer the "fast track" program and that if the existence of those programs illegal reentry under 8 u.s.c. § 1326(a) and (b)(2). we affirm. ii. discussion for the eighth circuit sentence. because bolivar-diaz's sentence came within the applicable guidelines presentence investigation report (psr) and sentencing transcript. indeed, much of * better serve bolivar-diaz's medical needs given the risk of mediocre care in mexico. treatment. these reasons, argues bolivar-diaz, account for several of the 18 u.s.c. appellant. * country) and thus starting his life in a foreign place once deported following our review of the district court's sentencing colloquy reveals that the district filed: february 10, 2010 disparity, promotion of respect for the law, and adequate criminal deterrence. bolivar-diaz's actual history is unclear because he has provided inconsistent variance, argues bolivar-diaz, is warranted based upon the following: (1) he is in his great. we are satisfied that the district court considered and gave the appropriate information throughout the years to government officials. what is clear, however, is -3- such as assignment to minimum security prisons, vocational rehabilitation, and drug the government claimed that a longer sentence was warranted to provide just on march 11, 2008, bolivar-diaz was indicted for illegal reentry in violation the suggested advisory guidelines range of forty-one to fifty-one months. the analysis. indeed, the clarity of bolivar-diaz's likelihood of recidivism was just too court, in light of the appropriate § 3553(a) factors, considered each factor bolivar- reasonableness of his sentence, arguing that it is greater than necessary to accomplish of illegal behavior. thesentencingpurposesof§3553(a). contrarytothegovernment'spositionregarding bolivar-diaz pled guilty to the instant offense and requested that the district addressing bolivar-diaz's health, the government argued that imprisonment might i. background to drive in a single lane. the psr additionally notes seven other arrests for various (4) he has numerous health problems, including anxiety, thyroid problems, and accordingly, for the reasons stated herein, we affirm. 1953. he came to the united states at the age of eleven for reasons unclear in the range and is amply supported by the record, we conclude that the sentence is not bolivar-diaz's suggested mitigating factors persuasive in its overall § 3553(a) 587 f.3d 896, 900 (8th cir. 2009). bolivar-diaz challenges the substantive were included in the criminal history computation for sentencing purposes. this calculation in this case, and remains the thrust of the government's argument on court for the western district of missouri. entry and criminal activity resulting in various convictions and jail time for bolivar- criminal history is voluminous. the psr identifies eleven convictions for crimes hepatitis (for which he reported to be on no medication); (5) he spent many months beam, circuit judge. ___________ weight to each of the relevant § 3553(a) factors in determining bolivar-diaz's states to continue the criminal activity to which he has become accustomed. thus, no. 09-1538 ranging from unlawful use of a weapon and distribution of heroin, to theft and failure that upon release and ultimate deportation, bolivar-diaz would return to the united appeal. imprisonment, would be difficult so a lesser sentence would jumpstart that process; that bolivar-diaz is an illegal alien who has been deported at least twice. and, his iii. conclusion in custody prior to his sentencing; (6) given the availability of "fast track" programs ______________________________ weapons and drug offenses. also noted was the fact that only a very small minority not limit our review of the substantive reasonableness of the sentence to plain error. appellee, * appeal from the united states ___________ that the psr indicates bolivar-diaz reported he had not seen his daughter in four v. * district of missouri. § 3553(a) factors including the personal characteristics of the defendant, sentencing united states court of appeals latter point seems to have been the driving force behind the court's ultimate sentence pointed out at sentencing, and again on appeal, bolivar-diaz's extensive history of diaz raised in support of the suggested variance. the court did not, however, find