     Case: 19-10101      Document: 00515060919         Page: 1    Date Filed: 08/02/2019




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

                                                                                  FILED
                                    No. 19-10101                             August 2, 2019
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

HORACIO DOMINGUEZ-VILLALOBOS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:18-CR-76-1


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
       Horacio Dominguez-Villalobos was convicted of illegal reentry after
deportation and was sentenced above the guidelines range to 36 months of
imprisonment, to be followed by three years of supervised release. He appeals.
Dominguez-Villalobos first challenges the substantive reasonableness of his
sentence, arguing that his sentence is greater than necessary to satisfy the
sentencing goals set forth in 18 U.S.C. § 3553(a).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-10101

      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). The district court’s 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); § 3553(a)(1), (a)(2). Among the reasons the
district court cited for the upward variance were the defendant’s “13 prior
convictions. 12 of which received no criminal history points,” the nature of some
of those crimes, and a prior illegal reentry sentence of 24 months that did not
deter the defendant. Although the 36-month sentence is more than twice the
14 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). 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.
      Dominguez-Villalobos 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 an essential element of the offense. Regarding the validity of his
guilty plea, Dominguez-Villalobos 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, Dominguez-Villalobos asserts that
it exceeds the two-year maximum set forth in § 1326(a) and, thus, violates the



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                                 No. 19-10101

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).
      For the first time on appeal, Dominguez-Villalobos challenges the
standard condition of supervised release that requires him to permit a
probation officer to visit him at any time at home or elsewhere. He argues that
the visitation condition is unreasonable under the Fourth Amendment and
under applicable statutes and is unconstitutionally overbroad. He concedes
that review of this issue is limited to plain error. See United States v. Jones,
484 F.3d 783, 792 (5th Cir. 2007).
      In United States v. Cabello, 916 F.3d 543, 544 (5th Cir. 2019), this court
found no plain error in the imposition of the visitation condition. Dominguez-
Villalobos correctly concedes that this argument is foreclosed by Cabello, but
he seeks to preserve the issue for further review.
      The judgment of the district court is AFFIRMED.




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