     Case: 17-10184      Document: 00514251125         Page: 1    Date Filed: 11/28/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 17-10184                                   FILED
                                  Summary Calendar                         November 28, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DAMIEN CASTILLO-MURION, also known as Hector Raul Chairez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-200-1


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Damien Castillo-Murion appeals the 50-month sentence imposed
following his guilty plea conviction for illegal reentry in violation of 8 U.S.C.
§ 1326.    The sentence represents an upward variance from the applicable
guidelines range of 21–27 months. On appeal, Castillo-Murion first contends
that his sentence is substantively unreasonable. Specifically, he asserts that
the district court gave undue weight to his criminal history and failed to


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10184     Document: 00514251125      Page: 2   Date Filed: 11/28/2017


                                  No. 17-10184

balance properly the sentencing factors set forth in 18 U.S.C. § 3553(a). He
also argues that the extent of the variance is excessive.
      We review claims that a sentence is substantively unreasonable, in light
of the 18 U.S.C. § 3553(a) factors, under an abuse of discretion standard. Gall
v. United States, 552 U.S. 38, 51 (2007). The record confirms that the district
court considered counsel’s arguments and made an individualized assessment
of the § 3553(a) factors, determining that the seriousness and extensiveness of
Castillo-Murion’s criminal history, the need to deter future misconduct, and
the need to protect the public outweighed Castillo-Murion’s motives for
returning to the United States and warranted an above-guidelines sentence.
See Gall, 552 U.S. at 49–51; § 3553(a)(1), (2)(B), (C). Castillo-Murion has not
shown that the court’s focus on his criminal history failed to take into account
“a factor that should have received significant weight,” gave “significant weight
to an irrelevant or improper factor,” or represented “a clear error of judgment
in balancing the sentencing factors.” United States v. Smith, 440 F.3d 704, 708
(5th Cir. 2006).
      Nor did the district court error in varying 23 months above the guidelines
range’s upper bound (from 27 months to 50 months). Indeed, we have upheld
variances and departures greater than the increase to Castillo-Murion’s
sentence. See United States v. Jones, 444 F.3d 430, 433, 441–42 (5th Cir. 2006)
(46- to 57-month guidelines range; 120-month sentence). He has failed to show
that the district court’s justification for the imposed sentence was insufficiently
compelling. See Smith, 440 F.3d at 707.
      Castillo-Murion also argues that 18 U.S.C. § 16(b) is unconstitutionally
vague and, therefore, none of his prior convictions should have been
categorized as a crime of violence making it an aggravated felony under
U.S.S.G. § 2L1.2(b)(1)(C). This claim is factually baseless as none of Castillo-



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                                  No. 17-10184

Murion’s prior convictions was categorized as an aggravated felony.
Regardless, Castillo-Murion concedes that our precedent forecloses his
argument. See United States v. Gonzalez-Longoria, 831 F.3d 670, 677–78 (5th
Cir. 2016) (en banc), petition for cert. filed (Sept. 29, 2016) (No. 16-6259).
      Finally, Castillo-Murion argues that his sentence violates his due
process rights, asserting that his sentence could not exceed the two-year
maximum under § 1326(a) because the indictment did not allege that he had a
prior conviction that would trigger a sentencing enhancement under § 1326(b).
He correctly concedes that this issue is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224 (1998).
      The judgment of the district court is AFFIRMED.




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