United States Court of Appeals

for the Fifth Circuit

No. 20-50260

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Gregorio Conde-Castillo, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:19-CR-2361-1

Before Haynes, Willett, and Ho, Circuit Judges.

Per Curiam:*

Gregorio Conde-Castillo pleaded guilty to illegal reentry of the United 

States after removal. The district court, taking note of Conde-Castillo’s prior 

felony convictions of cruelty to children, which did not incur criminal history 

points, upwardly varied from the guidelines range of zero to six months of 

* 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opinion should not be published and is not precedent except under the limited 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

November 6, 2020

Lyle W. Cayce

Clerk

Case: 20-50260 Document: 00515630032 Page: 1 Date Filed: 11/06/2020
No. 20-50260

2

imprisonment and sentenced Conde-Castillo to a 14-month term of 

imprisonment, to be followed by a three-year term of supervised release. 

Conde-Castillo now appeals, arguing that the 14-month sentence of 

imprisonment is substantively unreasonable.

As an initial matter, we note that Conde-Castillo has recently been 

released from the Bureau of Prisons. Despite his release, Conde-Castillo’s 

appeal of his sentence of imprisonment is not moot because he remains 

subject to a term of supervised release. See United States v. Heredia-Holguin, 

823 F.3d 337, 340 (5th Cir. 2016)(en banc)(answering “no” to the following 

question: “When an alien defendant is deported upon completing his term 

of imprisonment, but remains subject to a term of supervised release, is his 

sentencing appeal moot?”); see also United States v. Vega, 960 F.3d 669, 674-

75 (5th Cir. 2020)(concluding that this analysis applies even when the 

defendant does not directly challenge his supervised release term).

By requesting a sentence within the guidelines range, Conde-Castillo 

preserved the issue of the substantive reasonableness of his above-guidelines 

sentence. See Holguin-Hernandez v. United States, 140 S. Ct. 762 766-67

(2020). Our review is therefore for abuse of discretion. See Gall v. United 

States, 552 U.S. 38, 51 (2007).

Conde-Castillo asserts in his brief that the rationale given by the 

district court for its sentence is insufficient to support an upward departure 

under U.S.S.G. § 4A1.3, p.s. As discussed above, however, the district court 

imposed an upward variance, not a departure pursuant to § 4A1.3. A 

departure and a variance are separate and distinct sentencing mechanisms. 

See United States v. Jacobs, 635 F.3d 778, 782 (5th Cir. 2011). This portion of 

Case: 20-50260 Document: 00515630032 Page: 2 Date Filed: 11/06/2020
No. 20-50260

3

Conde-Castillo’s argument therefore fails at the outset. See United States 

v. Mejia-Huerta, 480 F.3d 713, 723 (5th Cir. 2007).

Additionally, Conde-Castillo contends that a guidelines sentence of 

zero to six months of imprisonment would have sufficiently punished him 

considering the facts of his illegal reentry offense and his criminal history. An 

above-guidelines sentence will be found substantively unreasonable when it 

“(1) does not account for a factor that should have received significant 

weight, (2) gives significant weight to an irrelevant or improper factor, or (3) 

represents a clear error of judgment in balancing the sentencing factors.” 

United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). When evaluating 

a challenge to the substantive reasonableness of a sentence, we consider “the 

totality of the circumstances, including the extent of any variance from the 

Guidelines range.” United States v. Fraga, 704 F.3d 432, 440 (5th Cir. 2013) 

(quotation marks omitted).

The district court did not err by considering Conde-Castillo’s 

criminal history in imposing an upward variance. See Smith, 440 F.3d at 708-

09. Further, the extent of the upward variance is within the range we have 

previously upheld. See, e.g., United States v. Herbert, 813 F.3d 551, 556, 563, 

(affirming upward variance to 92 years from a guidelines sentence of 

approximately six to seven years); United States v. Key, 599 F.3d 469, 475, 

476 (5th Cir. 2010) (affirming a 216-month sentence when the applicable 

guidelines range was 46 to 57 months); United States v. Brantley, 537 F.3d 

347, 348-50, (5th Cir. 2008) (upholding an upward departure or variance to 

180 months where the maximum guidelines sentence was 51 months). Under 

the totality of the circumstances, including the significant deference that is 

given to the district court’s consideration of the § 3553(a) factors, the extent 

of the variance, and the district court’s reasons for its sentencing decision, 

Conde-Castillo fails to demonstrate that the upward variance is substantively 

unreasonable. See Fraga, 704 F.3d at 439-40; Smith, 440 F.3d at 708.

Case: 20-50260 Document: 00515630032 Page: 3 Date Filed: 11/06/2020
No. 20-50260

4

Accordingly, the judgment is AFFIRMED.

Case: 20-50260 Document: 00515630032 Page: 4 Date Filed: 11/06/2020