United States v. Rogelio Hernandez-Portillo , 442 F. App'x 146 ( 2011 )


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  •      Case: 10-51221     Document: 00511610460         Page: 1     Date Filed: 09/22/2011
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    September 22, 2011
    No. 10-51221
    Summary Calendar                        Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    ROGELIO HERNANDEZ-PORTILLO,
    Defendant-Appellant
    Appeals from the United States District Court
    for the Western District of Texas
    USDC No. 2:09-CR-1112-1
    Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.
    PER CURIAM:*
    Rogelio Hernandez-Portillo appeals the 36-month sentence imposed
    following his guilty plea conviction for illegal reentry following deportation in
    violation of 8 U.S.C. § 1326. He contends that the above-guidelines sentence is
    substantively unreasonable because it was greater than necessary to satisfy the
    sentencing goals of 18 U.S.C. § 3553(a). Specifically, he argues that the sentence
    was more than double the lowest sentence recommended by the what the parties
    agreed was the correct guidelines range, that U.S.S.G. § 2L1.2 double counted
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    Case: 10-51221    Document: 00511610460      Page: 2   Date Filed: 09/22/2011
    No. 10-51221
    his criminal history and overstated the seriousness of his relatively minor
    trespassing offense, that the Guidelines failed to account for his benign motive
    for returning to the United States, and that he was ignorant of the serious
    sentence he faced for illegally reentering the United States. He also argues that
    the district court’s comments at sentencing demonstrated a disdain for circuit
    precedent and appellate review, thereby undermining respect for the law and the
    perception of fairness in sentencing.
    We review the “substantive reasonableness of the sentence imposed under
    an abuse-of-discretion standard.” Gall v. United States, 
    552 U.S. 38
    , 51 (2007).
    In reviewing an above-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). We also review
    whether the § 3553(a) factors support the sentence and give deference to the
    district court’s determination that the § 3553(a) factors justify the variance. 
    Id. Before imposing
    sentence, the district court considered the two possible
    guidelines ranges, the applicable policy statements, the § 3553(a) factors, the
    facts set forth in the presentence report, and Hernandez-Portillo’s arguments in
    mitigation of his sentence. The district court made an individualized assessment
    and concluded that neither range adequately took into account the § 3553(a)
    factors. Although Hernandez-Portillo’s 36-month sentence is 15 months greater
    than the top of the 15- to 21-month guidelines range and three months greater
    than the top of the 27- to 33-month guidelines range, we have upheld variances
    considerably greater than the increase to his sentence. See 
    Brantley, 537 F.3d at 348-50
    ; United States v. Jones, 
    444 F.3d 430
    , 433, 441-42 (5th Cir. 2006). We
    have also held that a district court may impose a non-guidelines sentence based
    upon its disagreement with the Guidelines, United States v. Herrera-Garduno,
    
    519 F.3d 526
    , 530-31 (5th Cir. 2008), and rejected arguments that double
    2
    Case: 10-51221   Document: 00511610460    Page: 3   Date Filed: 09/22/2011
    No. 10-51221
    counting renders a sentence unreasonable, United States v. Duarte, 
    569 F.3d 528
    , 529-31 (5th Cir. 2009).
    Hernandez-Portillo’s arguments do not show a clear error of judgment on
    the district court’s part in balancing the § 3553(a) factors; instead, they
    constitute a mere disagreement with the district court’s weighing of those
    factors.   Given the significant deference that is due to a district court’s
    consideration of the § 3553(a) factors and the district court’s reasons for its
    sentencing decision, Hernandez-Portillo has not demonstrated that the sentence
    is substantively unreasonable. See 
    Gall, 552 U.S. at 50-53
    ; 
    Brantley, 537 F.3d at 349
    . Accordingly, the district court’s judgment is AFFIRMED.
    3
    

Document Info

Docket Number: 10-51221

Citation Numbers: 442 F. App'x 146

Judges: Elrod, Jones, Per Curiam, Prado

Filed Date: 9/22/2011

Precedential Status: Non-Precedential

Modified Date: 8/5/2023