           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                        September 22, 2009

                                     No. 08-31210                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellant
v.

FERNANDO AGUILLAR-GUERRERO,

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:08-CR-174-1


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
       Fernando Aguillar-Guerrero (“Aguillar”) appeals his above-Guidelines
sentence following his conviction upon a plea of guilty to illegal reentry after a
felony conviction. 18 U.S.C. § 1326(a), (b)(1). We AFFIRM.
       Aguillar first entered this country as a youth. He was first deported on
June 28, 2006. Five months later, he was rearrested by border agents in Texas;
he was removed in April of 2007. In May 2008, he again entered the United


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                       No. 08-31210

States unlawfully. He was arrested following an incident where he was accused
of disturbing the peace. His prior convictions consist of a misdemeanor assault
conviction in 2005 and a prior illegal reentry conviction in 2007. He served four
months incarceration and one year supervised release on the latter charge.
       Aguillar pleaded guilty to the current offense. On appeal, he does not
contest the probation department’s calculation of his Guidelines sentence,
challenging only the substantive reasonableness of his ultimate sentence. After
an increase for deportation after prior conviction of a felony and decrease for
acceptance of responsibility, his offense level was ten. With a criminal history
category of III, his Guidelines sentence was ten to sixteen months. The district
judge sentenced Aguillar to sixty months, well below the statutory maximum of
ten years, but well above the high end of the Guidelines range.
       At the sentencing hearing, Aguillar apologized for entering the country
illegally and promised not to do so again. Neither he nor his attorney offered
any reasons why a particular sentence should be imposed. The district judge
rejected the Guidelines range and imposed a sixty-month sentence 1 stating: “I’ve
considered the Guidelines, and I just don’t think they’re adequate to address Mr.
Aguillar’s tendency to reenter illegally. I think the only way to keep him from
doing so is to keep him in jail . . . .” She also mentioned the cost of these
prosecutions. In her written Statement of Reasons, the judge reiterated the need
for deterrence in imposing this sentence. Aguillar’s counsel objected at the
sentencing hearing stating that the sentence “is excessive under the facts and
circumstances of this particular case.”            In the district court and this one,




       1
           Neither side has focused on whether this sentence represented a variance or a
departure from the Guidelines. On the issue presented to us, the difference is not dispositive.
Cf. United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008) (finding the characterization
of the sentence not significant if “the sentence imposed was reasonable under the totality of
the relevant statutory factors”) (internal quotation marks and citation omitted).

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Aguillar has never stated any particular reasons why the sentence is excessive
other than its variation from the Guidelines sentence.
       In Gall v. United States, 552 U.S. 38, — (2007), the Court authorized an
appellate presumption of reasonableness for a within-Guidelines sentence.
However, the Court refused to find sentences outside the Guidelines
presumptively unreasonable. “Gall . . . squarely rejected the proposition that
extraordinary circumstances are necessary to justify a sentence outside the
Guidelines range.” United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th
Cir.) (upholding sentence, on plain error review, of seventy-two months when the
Guidelines range was twenty-four to thirty months), cert. denied, 129 S. Ct. 625
(2008). “Rather, ‘the sentencing court is free to conclude that the applicable
Guidelines range gives too much or too little weight to one or more factors,’ and
may adjust the sentence accordingly under § 3553(a).” Id. (quoting United States
v. Williams, 517 F.3d 801, 809 (5th Cir. 2008)) (internal citations omitted).
       Following Gall, we have upheld upward departures and variances in
several cases. See, e.g., id.; United States v. Herrera-Garduno, 519 F.3d 526, 532
(5th Cir. 2008) (upholding a sentence of sixty months where the Guidelines
range was twenty-one to twenty-seven months); see also United States v. Lozano-
Estrada, 312 F. App’x 611, 612–13 (5th Cir. 2009) (affirming a sentence of sixty
months in an illegal reentry case where Guidelines range was ten to sixteen
months); United States v. Palacios, 273 F. App’x 321 (5th Cir. 2008) (upholding
a forty-four-month sentence for illegal reentry where the Guidelines range was
fifteen to twenty months); United States v. Castro-De Los Santos, 261 F. App’x
681, 683 (5th Cir.) (in an illegal reentry case, affirming a sixty-month sentence
that was twice as high as the top of the Guidelines range), cert. denied, 128 S.
Ct. 2458 (2008).2 Aguillar has cited no cases from our court finding such a

       2
        While unpublished cases are not precedent, these three cases are cited as exemplars
of how we have handled other upward departures and variances in illegal reentry cases in the

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variance or departure for this offense under similar circumstances substantively
unreasonable.
       Thus, Aguillar’s claim of excessiveness must rest on the particulars of his
case. “In reviewing a challenge to the length of a non-Guidelines sentence, we
may ‘take the degree of variance into account and consider the extent of a
deviation from the Guidelines.’ . . . But in applying abuse-of-discretion review,
we ‘must give due deference to the district court’s decision that the § 3553(a)
factors, on a whole, justify the extent of the variance.’” Herrera-Garduno, 519
F.3d at 530 (quoting Gall, 552 U.S. at —) (internal citations omitted). On the
one hand, this sentence is, percentage-wise, much higher than the Guidelines
range. On the other hand, the judge correctly noted that Aguillar has not been
deterred by short sentences in the past. In just two years, he twice illegally
reentered. Even after being convicted of illegal reentry and serving time for that
offense, he returned only one year later. A district court’s sentencing discretion
is not unbounded, but a sentencing appeal is not an opportunity for the appellate
court to substitute its judgment for that of the district court.
       We conclude that the court’s sentence is not an abuse of discretion.
Accordingly, the district court’s judgment is AFFIRMED.




last two years.

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