* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-31183

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

WALTER AGUILAR-RODRIGUEZ

Defendant-Appellant

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:07-CR-276-1

Before SMITH, WIENER, and HAYNES, Circuit Judges. 

PER CURIAM:*

Defendant-Appellant Walter Aguilar-Rodriguez (“Aguilar-Rodriguez”)

appeals his sentence for illegally reentering the United States after removal, in

violation of 8 U.S.C. § 1326(a) (2000). He contends that (1) 18 months’

imprisonment, a 12-month upward variance from the range provided by the

United States Sentencing Commission Sentencing Guidelines (“Guidelines”), was

unreasonable, and (2) the district court erred by not providing advance notice

United States Court of Appeals

Fifth Circuit

F I L E D

August 11, 2008

Charles R. Fulbruge III

Clerk
No. 07-31183

1 See United States v. Mejia-Huerta, 480 F.3d 713, 720-23 (5th Cir. 2007), cert. denied,

128 S. Ct. 2954 (2008). 

2 See Irizarry v. United States, 128 S. Ct. 2198, 2202-04 (2008). The Court decided that

such notice is not necessary when the district court produces a sentence at“variance” with, but

that is not a “departure” from, the Guidelines. Id. “‘Departure,’” the Court held, “is a term of

art under the Guidelines and refers only to non-Guidelines sentences imposed under the

framework set out in the Guidelines.” Id. at 2202. A “variance” is a sentence imposed at

variance “from the advisory Guidelines,” but not a “‘departure’ within the Guidelines.” Id. at

2204 (Breyer, J., dissenting). As the sentence in this case was imposed not as a departure

based on the factors within the Guidelines, but in variance from the Guidelines, notice was

unnecessary. 

3 Under 18 U.S.C. § 3585(b)(1), which provides that a defendant “shall be given credit

toward the service of a term of imprisonment for any time he has spent in official detention

prior to the date the sentence commences,” if the time in detention is “a result of the offense

for which the sentence was imposed,” we have calculated Aguilar-Rodriguez’s time in custody

from June 23, 2007. The date selected, however, as the beginning of his time in official

detention, whether June 23, 2007 (the date the defendant was taken into state custody), June

27, 2007 (the date of transfer to federal custody), December 19, 2007 (the date of sentencing),

or January 17, 2008 (the date the defendant was delivered to begin serving his sentence), does

not bear on our determination in this case as we do not conduct a substantive

unreasonableness inquiry.

2

that it intended to sentence him above the top of the Guidelines range. The

second argument, as both Aguilar-Rodriguez and the Plaintiff-Appellee United

States of America (“the government”) recognize, was foreclosed by this court’s

precedent at the time of briefing1 and is now foreclosed by the Supreme Court

as well.2 We therefore limit our consideration to Aguilar-Rodriguez’s first

contention. Concluding that the district court committed procedural error by

failing to explain adequately the reasons for the variance of sentence above the

Guidelines range, we vacate the sentence, of which Aguilar-Rodriguez has

already served approximately 12 months in custody,3 and remand with

instructions to the district court (with special cooperation from the government

and the defense) to expedite resentencing, with our respectful but heartfelt

request that the court consider a sentence of time served (plus any appropriate

supervised release).

I. FACTS AND PROCEEDINGS
No. 07-31183

3

Aguilar-Rodriguez, a citizen of Honduras, was indicted by the government

on July 27, 2007, for illegal reentry after removal in violation of 8 U.S.C. §

1326(a). According to the record on appeal, Aguilar-Rodriguez had been

deported one time previously, from El Paso, Texas, in 2005, but otherwise has

no criminal history of any kind. He pleaded guilty to the federal indictment on

September 27, 2007, and was sentenced on December 19, 2007. A Presentence

Investigation Report (“PSR”) calculated a Guidelines sentence range of 0 to 6

months. Neither party objected to the PSR. 

At sentencing,the districtjudge recited the sentencing factors of 18 U.S.C.

§ 3553(a) that he found relevant, highlighting § 3553(a)(1), “the nature and

circumstances of the offense and the history and characteristics of the

defendant”; § 3553(a)(2)(A), “the need for the sentence imposed to reflect the

seriousness of the offense, to promote respect for the law, and to provide just

punishment for the offense”; §3553(a)(2)(B), “to afford adequate deterrence to

criminal conduct”; and § 3553(a)(2)(C),“to protectthe public from further crimes

of the defendant.” The judge noted that “the instant offense represents at least

this defendant’s second illegal entry into this country. And when I say at least,

I mean that I don’t know how many other times he has entered this country

illegally.” After expressing the hope that the sentence to be imposed “will make

the defendant think twice before illegally entering this country a third time and

perhaps prevent others from illegally entering the country the first time,” the

district court sentenced Aguilar-Rodriguez to imprisonment for 18 months plus

two years’ supervised release after completion of his imprisonment. 

Counsel for Aguilar-Rodriguez vehemently objected to both the upward

variance as unreasonable and the two-year term of supervised release. The

district court later revised the term of supervised release from two years to one

to conform with the maximum period of supervised release specified in 18 U.S.C.

§ 3583(b)(3). This timely appeal by Aguilar-Rodriguez followed. 
No. 07-31183

4 Gall v. United States, 128 S. Ct. 586, 594 (2007). 

5

Id.

6

Id. at 597. 

7

Id.

8 United States v. Ronquillo, 508 F.3d 744, 752 (5th Cir. 2007), cert. denied, 128 S. Ct.

2458 (2008). 

9 Gall, 128 S. Ct. at 597.

10 Id.

4

II. ANALYSIS

A. Standard of Review

We review a district court’s sentencing decision for reasonableness.4 This

reasonableness inquiry is the “familiar abuse-of-discretion standard of review.”5

We shall not indulge in a presumption that a sentence is unreasonable simply

because it falls outside the range of the Guidelines.6 Neither shall we disturb a

sentence simply because we “might reasonably . . . conclude[] that a different

sentence [is] appropriate.”7 Our examination is limited to the “specific reasons

provided by the District Court” for its sentence.8

B. Merits

The Supreme Court has structured our sentencing review as a two-step

process. We are first to review the sentencing process for “significant procedural

error, such as failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider the § 3553(a)

factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence—including an explanation for any

deviation from the Guidelines range.”9 A district court is required to provide

adequate justifications so that our review can be meaningful and sentencing is

perceived as fair.10 An “unusually lenient or an unusually harsh sentence”
No. 07-31183

11 Id. at 594.

12 Id. at 597.

13 Id. at 595-96. 

14 Id. at 594. 

15 Id. at 597.

16 Id. 

17 Id.

5

requires the district court to explain why its decision “is appropriate in a

particular case with sufficient justifications.”11

Only if we are satisfied with the district court’s procedural compliance are

we to consider “the substantive reasonableness of the sentence imposed under

an abuse-of-discretion standard.”12 A district court does not need to find

“extraordinary” or “exceptional” circumstances to justify a non-Guidelines

sentence, and we shall not develop, as a standard, a “rigid mathematical

formula” based on the percentage variance from the Guidelines.13 We do,

however, require “a district judge [to] give serious consideration to the extent of

any departure from the Guidelines,”14 and we do consider the extent of a

variance when evaluating the sentence under the totality ofthe circumstances.15

A non-Guidelines sentence requires the sentencing judge to “ensure that the

justification is sufficiently compelling to support the degree of the variance.”16

“[A] major departure should be supported by a more significant justification than

a minor one.”17

Aguilar-Rodriguez first contends that the district court committed

procedural error in failing adequately to explain its variance from the

Guidelines. We agree. Other than simply reciting the factors from § 3553(a), the

district judge failed to furnish “sufficient justifications” for imposing this

“unusually harsh” sentence. The district judge did express some general hope
No. 07-31183

18 Id.

19 United States v. Bonilla, 524 F.3d 647, 657-58 (5th Cir. 2008). 

20 We are not unmindful of the fact that the district court’s characterization of the

offense as “at least this defendant’s second illegal entry” and the court’s unsubstantiated

speculation about the defendant’s other activities were also irregular; and we find that the

record does not support the implication that tripling this one-time repeat offender’s

immigration violation sentence could even make it to the radar of the tens of thousands of

people who might seek to come to this country unlawfully. 

21 The Court said in Gall: “Assuming that the district court’s sentencing decision is

procedurally sound, the appellate court should then consider the substantive reasonableness

of the sentence imposed . . . .” 128 S. Ct. at 597. The inverse of this statement is that a

substantive reasonableness inquiry is not required when a sentence is procedurally unsound.

6

that the defendant would not illegally reenter the United States again and that

others would be deterred from entering illegally in the first place; but he failed

to tie that hope to the particulars of this case and the § 3553(a) factors in a

meaningful fashion. We conclude, therefore, that on the facts of this case, the

barest application (merely invoking the defendant’s name) of a single § 3553(a)

factor to the defendant does not qualify as “adequately explain[ing] the chosen

sentence” under Gall.

18 Other possible explanations for this sentence do not

appear in the record such that we would have to engage in what would be, at

best, speculation to find them. In this respect, this case is different from United

States v. Bonilla,

19 in which supporting factors could be discerned from the

record.20

As we conclude that the district court committed procedural error in

imposing sentence, it is unnecessary for us, at this juncture, to review the

substantive reasonableness of the sentence imposed.21

III. CONCLUSION

For the foregoing reasons, we VACATE Aguilar-Rodriguez’s 18-month

sentence and REMAND the case with instructions that the district court

expedite resentencing. Although we normally do not tread on a district court’s
No. 07-31183

22 FED. R. APP. P. 41(b), (c). 

7

broad discretion to set a particular sentence, here, in the interest of justice, we

strongly recommend that the court consider a sentence of time served (plus

appropriate supervised release, if any). The time served is already more than

double the top of the applicable Guidelines range. Such a sentence would

obviate the need subsequently to delve into the substantive reasonableness

inquiry of Gall that is, at this juncture, premature. Given the time AguilarRodriguez has already spentincarcerated, we are confidentthat both the district

court and the Bureau of Prisons will comply with both the letter and the spirit

of this judgment to ensure that the defendant receives its optimum benefit. 

The mandate shall issue forthwith.22