     Case: 11-10609     Document: 00511820784         Page: 1     Date Filed: 04/13/2012




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

                                                                            FILED
                                                                           April 13, 2012

                                       No. 11-10609                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,
v.

SALVADOR LUBIAN CASTILLO-GARCIA, also known as Monthgo Mery
Salvador Mayorga-Castillo,

                                                  Defendant–Appellant.



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:10-CR-76-1


Before JONES, Chief Judge, and OWEN and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Salvador Lubian Castillo-Garcia, a citizen of Mexico, pled guilty to one
count of illegally reentering the United States after having been previously
deported.      The district court sentenced Castillo-Garcia to the statutory
maximum of twenty-four months in prison. Castillo-Garcia appeals, arguing
that his acceptance of responsibility should have resulted in a sentence below




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-10609

the statutory maximum and that his sentence is therefore unreasonable. We affirm.
                                         I
      During a traffic stop near Snyder, Texas, Castillo-Garcia was arrested for
driving without a license. He admitted that he was a Mexican citizen who was
in the United States without any documentation to permit him to enter the
country. A subsequent immigration check revealed that he had previously been
deported and also had been allowed one voluntary return to Mexico. As he had
not received consent from the Attorney General or Secretary of Homeland
Security to apply for readmission to the United States, his reentry was in
violation of 8 U.S.C. § 1326. He was indicted for that offense and pled guilty.
      A presentence report (PSR) was prepared, and the district court adopted,
without objection from either party, the report’s findings and its analysis under
the sentencing guidelines. The PSR determined Castillo-Garcia’s base offense
level to be eight, pursuant to United States Sentencing Guidelines § 2L1.2(a),
reduced by two for his acceptance of responsibility by pleading guilty, pursuant
to § 3E1.1(a), for a total offense level of six. The PSR calculated Castillo-Garcia’s
criminal history score to be III, subjecting him to a Guidelines range of two to
eight months of imprisonment.
      Though the district court adopted the PSR’s sentencing guidelines
analysis, it varied upward and imposed a sentence of twenty-four months, the
statutory maximum. The court explained that the sentence was warranted by
the record, specifically the fact that Castillo-Garcia had eight prior convictions,
including two for driving while intoxicated and two weapons offenses, as well as
two prior deportations (including the voluntary one). The district court reasoned
that a variance was necessary to reflect the history and characteristics of the
defendant, to reflect the seriousness of the offense and to promote respect for the
law, to promote deterrence, and to protect the public from future crimes of the
defendant, pursuant to 18 U.S.C. §§ 3553(a)(1), (a)(2)(A), (a)(2)(B), and (a)(2)(C).

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                                       No. 11-10609

Castillo-Garcia objected to the reasonableness of the sentence on the ground that
a sentence of the statutory maximum did not take into account his acceptance
of responsibility.     He further asserted that his prior convictions were all
misdemeanor offenses committed over a period of years and were accounted for
by the Guidelines’ criminal history computation. The district court overruled the
objection, and Castillo-Garcia appealed.
                                              II
       “We review the reasonableness of a sentence for abuse of discretion,
whether it is inside or outside the guidelines range.”1 We first consider whether
there was significant procedural error, such as improper calculation, and then
we review the substantive reasonableness of the sentence, based on the totality
of the circumstances.2 “A sentence is unreasonable when it (1) does not account
for a factor that should have received significant weight, (2) gives significant
weight to an irrelevant or improper factor, or (3) represents a clear error of
judgment in balancing the sentencing factors.”3                    “Appellate review for
substantive reasonableness is ‘highly deferential,’ because the sentencing court
is in a better position to find facts and judge their import under the § 3553(a)
factors with respect to a particular defendant.”4
       Castillo-Garcia states the issue on appeal as “[w]hether the defendant’s
acceptance of responsibility was a factor that should have received significant
weight in the district court’s sentencing calculus.” Ultimately, however, Castillo-


       1
        United States v. Hernandez, 633 F.3d 370, 375 (5th Cir.) (citing Gall v. United States,
552 U.S. 38, 51 (2007)), cert. denied, 131 S. Ct. 3006 (2011).
       2
           Id.
       3
        United States v. Gutierrez, 635 F.3d 148, 154 (5th Cir. 2011) (citing United States v.
Smith, 440 F.3d 704, 708 (5th Cir. 2006)).
       4
         Hernandez, 633 F.3d at 375 (citing United States v. Key, 599 F.3d 469, 473 (5th Cir.
2010), cert. denied, 131 S. Ct. 997 (2011)).

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                                          No. 11-10609

Garcia’s argument is that a sentence of the statutory maximum is substantively
unreasonable when a defendant has accepted responsibility, because in such a
case, the acceptance of responsibility did not actually make a difference in the
sentence assigned.
      Castillo-Garcia contends that, by adopting the PSR, the district court
acknowledged that he had “clearly demonstrated acceptance of responsibility for
his offense” but nevertheless sentenced him to the maximum sentence he could
have received had he put the Government to its burden at trial and been
convicted. This, he says, goes against Congress’s intent to provide a benefit to
defendants who waive their right to trial,5 without whom the justice system
could not function. Castillo-Garcia argues that a district court “cannot use its
variance authority to circumvent Congressional policy preferences which are
implicit in statutory amendments to the [G]uidelines,” citing United States v.
Gomez-Herrera.6
      In Gomez-Herrera, we confirmed that “[s]entencing courts are still
constrained by Congressional policies,” giving the example of mandatory
minimum sentences for drug crimes.7 In that case, a defendant challenged his
sentence by arguing that the district court should have been permitted to
consider the sentencing disparity between districts that had “fast-track”
programs (with a corresponding sentence reduction) and those that did not have
such programs.8 We held that, because this disparity was intended by Congress,




      5
          U.S.S.G. § 3E1.1, amended by Pub. L. 108-21 § 401(g) (2003).
      6
          523 F.3d 554 (5th Cir. 2008).
      7
          Id. at 559.
      8
          Id. at 557.

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                                        No. 11-10609

it was not “unwarranted”9 and was not by itself a permissible reason to vary
from the Guidelines.10
       Castillo-Garcia argues that since a sentencing benefit for acceptance of
responsibility was also intended by Congress, the district court abused its
discretion by not reducing Castillo-Garcia’s sentence accordingly. His argument
appears to be that, since Congress passed an amendment to a Guidelines
provision governing acceptance of responsibility,11 it has effectively endorsed the
policies behind that provision, and that such endorsement means that a sentence
must include an actual reduction when the defendant has accepted
responsibility. Castillo-Garcia has not cited any authority for this proposition.
       We are mindful of the Supreme Court’s admonition that appellate courts
must “give due deference to the district court’s decision that the § 3553(a)
factors, on a whole, justify the extent of the variance” from the Guidelines range,
due to the superior position of the trial judge to assess and weigh the facts of an
individual case and defendant.12 There is no indication, or even allegation, that
the district court here did not consider Castillo-Garcia’s acceptance of
responsibility, and in fact it was included in the court’s computation of the
guidelines range. The record indicates only that the court concluded, in light of
all factors, that a twenty-four-month sentence was appropriate. That this
sentence is the statutory maximum does not demonstrate that acceptance of




      9
       See 18 U.S.C. § 3553(a)(6) (“The court, in determining the particular sentence to be
imposed, shall consider . . . the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar conduct . . . .”).
      10
           Gomez-Herrera, 523 F.3d at 563 & n.4.
      11
         Pub. L. 108-21 § 401(g) (2003) (amending U.S.S.G. § 3E1.1(b), a subsection that
appears to be inapplicable to Castillo-Garcia’s case).
      12
           Gall v. United States, 552 U.S. 38, 51 (2007).

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                                         No. 11-10609

responsibility did not receive any weight, but only that, in the end, other factors
were given greater weight.
       The Guidelines themselves provide for a decrease of two in the offense
level for acceptance of responsibility.13            However, the Guidelines advisory
sentencing range is not mandatory, and district courts are not required to
impose a sentence within the Guidelines range.14 The Guidelines are “the
starting point and the initial benchmark” for the sentence, but they “are not the
only consideration”; sentencing courts “must make an individualized
assessment” to determine the appropriate sentence.15 “‘[T]he 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).”16
       The district court concluded the Guidelines range did not adequately
account for the details of Castillo-Garcia’s history.             Castillo-Garcia had a
significant number of prior convictions, including several that could pose a
danger to the public, as well as multiple illegal entries into the United States.
The district court was within its discretion to increase the sentence based on
these factors.
       While Castillo-Garcia accepted responsibility in this case, it would
contravene several decisions of the Supreme Court, not to mention ignore the
structure of the Guidelines themselves, to hold that this particular provision,
must have a determinative effect on the sentence rendered.


       13
            See U.S.S.G. § 3E1.1(a).
       14
            United States v. Booker, 543 U.S. 220, 259 (2005).
       15
            Gall, 552 U.S. at 49-50.
       16
          United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008) (quoting United
States v. Williams, 517 F.3d 801, 809 (5th Cir. 2008)).


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                                 No. 11-10609

     Castillo-Garcia has not challenged his sentence on any other ground.
                             *        *         *
     For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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