     Case: 10-51221     Document: 00511610460         Page: 1     Date Filed: 09/22/2011




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

                                                                            FILED
                                                                        September 22, 2011
                                     No. 10-51221
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ROGELIO HERNANDEZ-PORTILLO,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 2:09-CR-1112-1


Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.
PER CURIAM:*
        Rogelio Hernandez-Portillo appeals the 36-month sentence imposed
following his guilty plea conviction for illegal reentry following deportation in
violation of 8 U.S.C. § 1326. He contends that the above-guidelines sentence is
substantively unreasonable because it was greater than necessary to satisfy the
sentencing goals of 18 U.S.C. § 3553(a). Specifically, he argues that the sentence
was more than double the lowest sentence recommended by the what the parties
agreed was the correct guidelines range, that U.S.S.G. § 2L1.2 double counted

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-51221

his criminal history and overstated the seriousness of his relatively minor
trespassing offense, that the Guidelines failed to account for his benign motive
for returning to the United States, and that he was ignorant of the serious
sentence he faced for illegally reentering the United States. He also argues that
the district court’s comments at sentencing demonstrated a disdain for circuit
precedent and appellate review, thereby undermining respect for the law and the
perception of fairness in sentencing.
      We review the “substantive reasonableness of the sentence imposed under
an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51 (2007).
In reviewing an above-guidelines sentence for substantive reasonableness, we
consider “the totality of the circumstances, including the extent of any variance
from the Guidelines range.” United States v. Brantley, 537 F.3d 347, 349 (5th
Cir. 2008) (internal quotation marks and citation omitted). We also review
whether the § 3553(a) factors support the sentence and give deference to the
district court’s determination that the § 3553(a) factors justify the variance. Id.
      Before imposing sentence, the district court considered the two possible
guidelines ranges, the applicable policy statements, the § 3553(a) factors, the
facts set forth in the presentence report, and Hernandez-Portillo’s arguments in
mitigation of his sentence. The district court made an individualized assessment
and concluded that neither range adequately took into account the § 3553(a)
factors. Although Hernandez-Portillo’s 36-month sentence is 15 months greater
than the top of the 15- to 21-month guidelines range and three months greater
than the top of the 27- to 33-month guidelines range, we have upheld variances
considerably greater than the increase to his sentence. See Brantley, 537 F.3d
at 348-50; United States v. Jones, 444 F.3d 430, 433, 441-42 (5th Cir. 2006). We
have also held that a district court may impose a non-guidelines sentence based
upon its disagreement with the Guidelines, United States v. Herrera-Garduno,
519 F.3d 526, 530-31 (5th Cir. 2008), and rejected arguments that double



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                                No. 10-51221

counting renders a sentence unreasonable, United States v. Duarte, 569 F.3d
528, 529-31 (5th Cir. 2009).
      Hernandez-Portillo’s arguments do not show a clear error of judgment on
the district court’s part in balancing the § 3553(a) factors; instead, they
constitute a mere disagreement with the district court’s weighing of those
factors.   Given the significant deference that is due to a district court’s
consideration of the § 3553(a) factors and the district court’s reasons for its
sentencing decision, Hernandez-Portillo has not demonstrated that the sentence
is substantively unreasonable. See Gall, 552 U.S. at 50-53; Brantley, 537 F.3d
at 349. Accordingly, the district court’s judgment is AFFIRMED.




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