     Case: 16-40633      Document: 00513785853         Page: 1    Date Filed: 12/06/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 16-40633
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         December 6, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

EDUARDO DEL ANGEL-CASTILLO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:16-CR-65-1


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Eduardo Del Angel-Castillo (“Del Angel”) pleaded
guilty to being an alien found to be in the United States unlawfully after a
previous removal, in violation of 8 U.S.C. § 1326(a).                  His Presentence
Investigation Report (“PSR”) calculated a guidelines sentencing range of one
to seven months. The PSR recited in detail the circumstances of Del Angel’s
arrest for sexual assault and aggravated assault with a deadly weapon after


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40633      Document: 00513785853        Page: 2    Date Filed: 12/06/2016


                                     No. 16-40633

raping his girlfriend and threatening her with a knife. Del Angel pleaded
guilty to one count of sexual assault and received eight years of deferred
adjudication. One count of aggravated assault with a deadly weapon was
dismissed.
      The district court varied upward and sentenced Del Angel to the
statutory maximum of 24 months of imprisonment based on his violent history
and characteristics and the need to protect the public.                Del Angel now
challenges the procedural and substantive reasonableness of his sentence. We
first review for significant procedural error. See United States v. Hebert, 813
F.3d 551, 559 (5th Cir. 2015), ), cert. denied 2016 WL 1134360 (U.S. Oct. 3,
2016) (No. 15-1190). “Second, if the sentence is procedurally sound or if the
procedural error is harmless, this Court ‘considers the substantive
reasonableness of the sentence imposed under an abuse-of-discretion
standard.’” Hebert, 813 F.3d at 559 (alteration omitted) (quoting United States
v. Robinson, 741 F.3d 588, 598 (5th Cir. 2015)). 1
      With respect to procedural reasonableness, the district court was
entitled to rely on the detailed factual recitation in the PSR regarding Del
Angel’s assaults on his girlfriend, which was based on the results of a police
investigation and not rebutted by any evidence or testimony submitted by Del
Angel. See United States v. Fuentes, 775 F.3d 213, 219-20 (5th Cir. 2014).
Although the district court was apparently mistaken that Del Angel had been
convicted of aggravated assault with a deadly weapon as well as sexual assault,
we are persuaded that the error was harmless. See United States v. Torres-
Perez, 777 F.3d 764, 768 (5th Cir. 2015). The district court explicitly stated its
intention to impose the longest sentence of imprisonment available based on



      1 We will assume that Del Angel preserved the issues he now raises on appeal because
his arguments fail even under a more lenient standard of review.


                                            2
    Case: 16-40633    Document: 00513785853     Page: 3   Date Filed: 12/06/2016


                                 No. 16-40633

Del Angel’s history of violent conduct, and the government persuasively argues
that nothing in the record indicates that the district court would have imposed
a sentence below the statutory maximum if it had correctly noted that Del
Angel’s violent conduct had resulted in only one conviction instead of two. See
United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009).
      With respect to substantive reasonableness, the district court was
entitled to consider Del Angel’s criminal history and the underlying
circumstances of the assaults on his girlfriend. See United States v. Vargas-
Soto, 700 F.3d 180, 184 (5th Cir. 2012). The above-guidelines sentence imposed
was “commensurate with the individualized, case-specific reasons provided by
the district court” and within the range of upward variances we have affirmed
in the past. See United States v. McElwee, 646 F.3d 328, 338, 344-45 (5th Cir.
2011). Considering our deferential review, Del Angel’s contention that the
district court put too much weight on his criminal history and his disagreement
with the magnitude of the variance is insufficient to warrant reversal. See Gall
v. United States, 552 U.S. 38, 51 (2007); Hebert, 813 F.3d at 562.
      AFFIRMED.




                                       3
