United States v. Nunez-Gonzalez ( 2021 )

Case: 20-11150 Document: 00516006626 Page: 1 Date Filed: 09/08/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 8, 2021
No. 20-11150
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Manuel Nunez-Gonzalez,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CR-55-1
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Manuel Nunez-Gonzalez appeals the sentence imposed following his
conviction for illegal reentry following removal in violation of 8 U.S.C.
§ 1326(a) and (b)(2). He first contends that, based upon Apprendi v. New
Jersey, 530 U.S. 466 (2000), his sentence is unconstitutional because
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-11150 Document: 00516006626 Page: 2 Date Filed: 09/08/2021
No. 20-11150
§ 1326(b) permits a sentence above the otherwise applicable statutory
maximum found in § 1326(a) without requiring that the necessary facts be
alleged in an indictment and proven beyond a reasonable doubt. We review
for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009). Nunez-
Gonzalez properly concedes that his position is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 226−27 (1998). See United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007). He seeks only to
preserve the issue for further review. There is no error, plain or otherwise.
Nunez-Gonzalez also argues that his 72-month above-guidelines
sentence is substantively unreasonable because it is greater than necessary to
achieve the goals of § 3553(a). He states that the district court gave too much
weight to the fact that he reentered the United States only one day following
his second removal to Mexico and that it failed to account for or to give
enough weight to the fact that he was forcibly returned to the United States
by a cartel. He argues that his sentence is extremely harsh considering it was
ordered to run consecutively to two 15-year state sentences.
His challenge to the substantive reasonableness of his sentence was
preserved. See Holguin-Hernandez v. United States, 140 S. Ct. 762, 766-67
(2020). In reviewing a non-guidelines sentence for substantive
reasonableness, we “consider the totality of the circumstances, including the
extent of any variance from the Guidelines range.” United States v. Brantley,
537 F.3d 347, 349 (5th Cir. 2008) (internal quotation marks and citation
omitted). A sentence is substantively unreasonable if it ignores a factor that
should have been given considerable weight, heavily weighs an improper
factor, or is the result of “a clear error of judgment in balancing the
sentencing factors.” United States v. Chandler, 732 F.3d 434, 437 (5th Cir.
2013) (internal quotation and citations omitted).
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Case: 20-11150 Document: 00516006626 Page: 3 Date Filed: 09/08/2021
No. 20-11150
The record shows that the district court gave due consideration to the
§ 3553(a) factors. Notably, notwithstanding the circumstances of Nunez-
Gonzalez’s second illegal reentry, the district court’s finding that there was
a high likelihood that Nunez-Gonzalez would return to the United States and
commit crimes was supported by the fact of his first illegal reentry, the fact
that his family lives in the United States, his extensive criminal history, and
the failure of previous sentences to deter him from criminal conduct.
Accordingly, Nunez-Gonzalez has not shown that his sentence is
substantively unreasonable. See Chandler, 732 F.3d at 437. Moreover, the
extent of the variance is similar to others we have affirmed. See Brantley, 537
F.3d at 349-50; United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir.
2008); United States v. Smith, 440 F.3d 704, 708-10 (5th Cir. 2006). The
district court’s judgment is AFFIRMED.
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