United States Court of Appeals

for the Fifth Circuit

No. 20-20320

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Jose Noe Castro Orellana, 

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:20-CR-107-1

Before Jolly, Elrod, and Graves, Circuit Judges.

Per Curiam:*

Jose Noe Castro Orellana pleaded guilty to violating 8 U.S.C. 

§ 1326(a), illegal reentry by a previously deported alien, and was sentenced 

to 24 months in prison, the statutory maximum sentence. Orellana argues

that his sentence is unreasonable, both procedurally and substantively.

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 11, 2021

Lyle W. Cayce

Clerk

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No. 20-20320

2

We review sentences for reasonableness, first determining whether 

the district court committed a procedural error, such as “selecting a sentence 

based on clearly erroneous facts.” Gall v. United States, 552 U.S. 38, 51 

(2007). Orellana contends that the district court selected his sentence based 

on its erroneous belief that he should have been charged with violating 

§ 1326(b)(1), which would have subjected him to a 10-year statutory 

maximum sentence, rather than § 1326(a) and its two-year statutory 

maximum sentence. Because Orellana failed to present this argument in the 

district court, our review is for plain error. Orellana must show a forfeited 

error that is “clear or obvious” and that has “affected [his] substantial 

rights” by “affect[ing] the outcome of the district court proceedings.” 

Puckett v. United States, 556 U.S. 129, 135 (2009) (internal quotation marks 

and citation omitted). If he makes this showing, we have the discretion to 

remedy the error but should do so “only if the error seriously affects the 

fairness, integrity or public reputation of judicial proceedings.” Id. (internal 

punctuation, quotation marks, and citation omitted).

Orellana has failed to show that the district court committed a clear or 

obvious error by relying on clearly erroneous facts to select the sentence. See 

Gall, 552 U.S. at 51. Even if the district court committed an error that was 

clear or obvious, Orellana has failed to show that the error affected his 

substantial rights because he has not shown a reasonable probability that, 

absent any reliance on its belief that Orellana should have been charged under 

§ 1326(b)(1), the court would have imposed a lesser sentence. See Puckett, 

566 U.S. at 135; United States v. Mondragon-Santiago, 564 F.3d 357, 364-65

(5th Cir. 2009). The 24-month sentence became the guidelines sentence 

because it was the statutory maximum sentence and was below the guidelines 

range of 30 to 37 months that would have otherwise applied and which had 

been correctly calculated. 

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No. 20-20320

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Because the district court did not commit a procedural error, we now 

consider whether the 24-month sentence was substantively reasonable. By 

requesting a sentence of one year and one day, Orellana preserved his 

substantive reasonableness challenge, see Holguin-Hernandez v. United States, 

140 S. Ct. 762, 764, 766-67 (2020), and we review for abuse of discretion. See 

United States v. Sifuentes, 945 F.3d 865, 868 (5th Cir. 2019), cert. denied, 140 

S. Ct. 2697 (2020). Orellana argues that the district court imposed a 

substantively unreasonable sentence because it relied too heavily on an

erroneous belief that he could have been charged under § 1326(b)(1), but he 

has failed to overcome the presumption of reasonableness that applies to his 

within-guidelines sentence, which was based, at least implicitly, on several 18 

U.S.C. § 3553(a) factors. See United States v. Alvarado, 691 F.3d 592, 597 (5th 

Cir. 2012); see also Gall, 552 U.S. at 51.

The judgment of the district court is AFFIRMED.

Case: 20-20320 Document: 00515701531 Page: 3 Date Filed: 01/11/2021