United States of America v. Rodrigo Bernabe-Reynoso

United States Court of Appeals
For the Eighth Circuit
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No. 23-3001
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United States of America
Plaintiff - Appellee
v.
Rodrigo Bernabe-Reynoso
Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Northern
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Submitted: March 11, 2024
Filed: May 17, 2024
[Unpublished]
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Before COLLOTON, Chief Judge, ERICKSON and KOBES, Circuit Judges.
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PER CURIAM.
Rodrigo Bernabe-Reynoso pled guilty to illegal reentry after deportation, in
violation of 8 U.S.C. § 1326(a). After calculating an advisory Sentencing Guidelines
range of two to eight months, the district court1 sentenced Bernabe-Reynoso to a 24-
1 The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.

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month term of imprisonment. Bernabe-Reynoso appeals, asserting his sentence was
both procedurally erroneous and substantively unreasonable. We affirm.
In February 2023, law enforcement stopped a vehicle driven by Bernabe-
Reynoso and arrested him for driving under the influence. Bernabe-Reynoso was
subsequently charged and pled guilty to illegal reentry after deportation. At
sentencing, the district court determined Bernabe-Reynoso’s advisory Sentencing
Guidelines range was two to eight months, which was based on a total offense level
of six and criminal history category III. Bernabe-Reynoso requested a sentence of
time served, which was approximately six months. The government recommended
a sentence within the applicable Sentencing Guidelines range. The district court
upward varied and imposed the statutory maximum sentence of 24 months to be
followed by 12 months of supervised release.
Bernabe-Reynoso asserts the district court committed procedural error when
it stated at sentencing that he had six, rather than five, prior removals from the United
States. When explaining the bases for its sentence, the district court expressed
concern about the lack of punishment imposed on Bernabe-Reynoso for the multiple
prior removals but was even more concerned about Bernabe-Reynoso’s “terrible
history of driving while intoxicated” and that he “endangers pedestrians and other
drivers on the highways in South Dakota.” The district court recounted four prior
driving under the influence convictions, two driving without a license convictions,
and another driving under the influence charge that was later dismissed. The court
also noted Bernabe-Reynoso has pending charges in Minnesota for driving while
impaired fourth degree, no Minnesota driver’s license, and open container.
Bernabe-Reynoso does not point to any evidence indicating the district court
was inclined to impose a lighter sentence because he had five, not six, prior removals
from the United States. See United States v. Isler, 983 F.3d 335, 343 (8th Cir. 2020)
(finding the defendant failed to show that factual determinations not integral to the
district court’s decision to vary upwards impacted his ultimate sentence). His claim
fails because he cannot show the district court’s misstatement of the number of

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removals “affected his substantial rights or that ‘but for the error he would have
received a more favorable sentence.’” See United States v. Thigpen, 848 F.3d 841,
847 (8th Cir. 2017) (quoting United States v. Linderman, 587 F.3d 896, 899 (8th
Cir. 2009)).
We next consider Bernabe-Reynoso’s claim that the district court imposed a
substantively unreasonable sentence because it gave significant weight to his
immigration history and his convictions for driving while under the influence. But
these are relevant § 3553(a) factors. While the district court placed more weight on
certain factors than Bernabe-Reynoso wanted, it did not abuse its broad sentencing
discretion by varying upward on his record. See United States v. Drew, 9 F.4th 718,
725-26 (8th Cir. 2021) (rejecting argument that upward variance was substantively
unreasonable when the district court considered the defendant’s earlier in-custody
conduct, his criminal history, the timing of the offense, the need for respect for the
law, and public safety).
We affirm the judgment of the district court.
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