### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-51221 Summary Calendar

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 impos e d following his guilty plea convict i on 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 co rrect guidelines range, that U.S.S.G. § 2L1.2 double counted U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Sep tem ber 2 2, 2 011 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-51221 Document: 00511610460 Page: 1 Date Filed: 09/22/2011No. 10-51221

his criminal history and overstated t h e 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 w a s i gn o r ant 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 disd ai n f or circuit
p re c e de nt an d ap pellate review, thereby undermining respect for the law an d th e 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 a n d citation omitted). We also review whether the § 3553(a) factors s u p p o rt t h e 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 gu i delines ranges, the applicable policy statements, the § 3553(a) factors , th e facts set forth in the presentence report, and Hernandez-Portillo’s arguments in mitigation of his sentence. Th e di s trict c o urt made an individualized assessment and concluded that neither range adequatel y t o o k 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 argumen t s that double

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counting renders a sentence unreasonab l e , 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 p art in balancing the § 3553(a) factors; instead, they constitute a m e re disagreement with the district court’s weighing of those factors. Given the significan t d eference that is due to a district court’s consideration of the § 3553(a) f a c t o r s a n d the district court’s reasons for its sentencing decision, H ern an de z-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.

3 Case: 10-51221 Document: 00511610460 Page: 3 Date Filed: 09/22/2011