United States of America v. Alejandro Acosta, also known as Alex

United States Court of Appeals
For the Eighth Circuit
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No. 19-3203
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Alejandro Acosta, also known as Alex
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: April 17, 2020
Filed: July 20, 2020
[Unpublished]
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Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.
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PER CURIAM.
Upon his release from prison in July 2014, Alejandro Acosta began a five-year
term of supervised release originating from his conviction on drug conspiracy and
firearm charges. On February 13, 2015, Acosta, a permanent resident of the United
States, contacted his probation officer in Iowa and advised his officer that he had

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been summoned to a meeting with an Immigration and Customs Enforcement (ICE)
officer on February 16, 2015. Fearing that he would be deported to Mexico, Acosta
did not report to the ICE meeting. On March 19, 2015, Acosta telephoned his
probation officer and acknowledged that he failed to appear for the ICE interview and
advised that he was residing in Mexico. He had no further contact with probation
officers for the next four and one-half years and his whereabouts were unknown.
In September 2019, Acosta was arrested in Arizona after a traffic stop.
Acosta’s supervised release was revoked after his admission of two supervised
release violations: failure to notify probation of a residence change and failure to
report as required to his probation officer. The parties agreed that the United States
Sentencing Guidelines range for the two Grade “C” violations was 5 to 11 months.
The United States recommended an upward variance to 24 months and Acosta
recommended a within-Guidelines range sentence. The district court1 sentenced
Acosta to a term of imprisonment of 24 months to be followed by a term of
supervised release of five years.
Acosta contends that his sentence is substantively unreasonable because the
district court failed to give adequate weight to the fact that these are Acosta’s only
violations of supervised release, he has committed no new law violations, and, when
apprehended during the traffic stop, he possessed no drugs or firearms. He further
asserts that the district court erred in giving significant weight to Acosta’s
immigration status.
“We review the reasonableness of [a] revocation sentence for abuse of
discretion.” United States v. Asalati, 615 F.3d 1001, 1006 (8th Cir. 2010). In
reviewing a sentence, we take “into account the totality of the circumstances.” Gall
1The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
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v. United States, 552 U.S. 38, 51 (2007); see also United States v. Feemster, 572 F.3d
455, 461 (8th Cir. 2009) (en banc). A court abuses its discretion if it “(1) fails to
consider a relevant factor that should have received significant weight; (2) gives
significant weight to an improper or irrelevant factor; or (3) considers only
appropriate factors but in weighing those factors commits a clear error of judgment.”
Feemster, 572 F.3d at 461 (internal quotation marks omitted); see also 18 U.S.C.
§ 3583(e) (“The court may, after considering the factors set forth in section 3553(a)
. . . revoke a term of supervised release, and require the defendant to serve in prison
all or part of the term of supervised release authorized by statute for the offense that
resulted in such term of supervised release . . . .”).
While the district court, in explaining its decision to vary upward, highlighted
Acosta’s criminal history and the nature and circumstances of his supervised release
violations, including his absconding for four and one-half years, the court also heard
argument touching on Acosta’s record while on supervised release and had before it
the probation office’s Supervised Release Worksheet and Recommendation, which
summarizes Acosta’s performance while under supervision. Further, Acosta’s
attorney discussed Acosta’s family circumstances, argued that Acosta absconded out
of fear of deportation, and pointed out that Acosta had no drugs or firearms in his
possession when he was apprehended.
The district court acted within its discretion in varying upward. See United
States v. David, 682 F.3d 1074, 1077 (8th Cir. 2012) (providing that the district
court’s upward variance is reviewed for abuse of discretion). “The district court has
wide latitude to weigh the § 3553(a) factors in each case and assign some factors
greater weight than others in determining an appropriate sentence.” United States v.
Borromeo, 657 F.3d 754, 757 (8th Cir. 2011) (quoting United States v. Bridges, 569
F.3d 374, 379 (8th Cir. 2009)). That the district court gave greater weight to some
factors and less weight to those factors urged by Acosta does not show an abuse of
discretion. See United States v. Lewis, 593 F.3d 765, 773 (8th Cir. 2010) (“The
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district court considered [defendant’s] arguments for a downward variance but
appropriately exercised its discretion in rejecting them.”).
Finally, the record reflects that the district court’s sentencing decision was
ultimately driven by Acosta’s criminal history and the need for deterrence rather than
Acosta’s alien status or the possibility that he would be deported as a result of his
federal convictions. Moreover, we reject Acosta’s contention that alien status is an
improper or irrelevant sentencing factor. See Asalati, 615 F.3d at 1006-07. Accordingly,
we reject Acosta’s contention that the district court considered an improper or
irrelevant sentencing factor. Asalati, 615 F.3d at 1007 (“Although the district court
referenced [defendant’s] alien status and expressed frustration with the inability to
remove him, the district court’s sentencing determination, properly viewed, was not
based on [defendant’s] alien status or removability . . . .”).
Finding no abuse of discretion, we affirm the judgment of the district court.
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