     Case: 18-11055      Document: 00514883472         Page: 1    Date Filed: 03/21/2019




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

                                                                                 FILED
                                    No. 18-11055                           March 21, 2019
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

VALENTIN AGUILAR-LOPEZ, also known as Tomas Aguilar-Lopez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:17-CR-62-1


Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Valentin Aguilar-Lopez was convicted of illegal reentry after deportation
and was sentenced above the guidelines range to 48 months of imprisonment,
to be followed by three years of supervised release. He appeals. Aguilar-Lopez
first challenges the substantive reasonableness of his sentence, arguing that it
is greater than necessary to satisfy the sentencing goals set forth in 18 U.S.C.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 18-11055

§ 3553(a). Aguilar-Lopez asserts that the sentence is more than twice the top
end of his guidelines range.
      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, to determine whether as a matter of
substance, the sentencing factors in section 3553(a) support the sentence.”
United States v. Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir. 2012) (internal
quotation marks and citation omitted). In articulating its reasons for the
sentence imposed, the district court noted that Aguilar-Lopez had been
removed from the United States on four separate occasions and had six prior
convictions. Additionally, the record shows that the court relied on permissible
§ 3553(a) factors in determining that an above-guidelines sentence was
appropriate, including the need to promote respect for the law, the need to
provide adequate deterrence, and the need to protect the public from further
crimes. Thus, the decision to vary above the advisory guidelines range was
based on permissible factors that advanced the objectives set forth in § 3553(a).
See United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).
      Although the 48-month sentence is more than twice the 21 months at the
top of the applicable guidelines range, we have upheld much greater variances.
See, e.g., United States v. Key, 599 F.3d 469, 475-76 (5th Cir. 2010); United
States v. Brantley, 537 F.3d 347, 348-50 (5th Cir. 2008). Based on the totality
of the circumstances, including the significant deference that is due to a district
court’s consideration of the § 3553(a) factors, the sentence imposed was not
substantively unreasonable. See Gerezano-Rosales, 692 F.3d at 400-01.
      Aguilar-Lopez also contends that his sentence exceeds the statutory
maximum punishment for the offense charged in the indictment and that his
guilty plea was unknowing and involuntary because he was not instructed on



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                                  No. 18-11055

an essential element of the offense. Regarding the validity of his guilty plea,
Aguilar-Lopez contends that the district court failed to advise him that the
felony provision of 8 U.S.C. § 1326(b)(1) was an essential element of the offense.
As to his sentence, Aguilar-Lopez argues that it exceeds the two-year
maximum set forth in § 1326(a) and, thus, violates the holding in Apprendi v.
New Jersey, 530 U.S. 466 (2000). As he correctly concedes, these arguments
are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). See
United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v.
Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007).
      Accordingly, the district court’s judgment is AFFIRMED.




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