IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 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

United States Court of Appeals

Fifth Circuit

F I L E D

September 22, 2011

Lyle W. Cayce

Clerk

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