IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50162

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE ABELARDO AMAYA-PORTILLO,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:10-CR-1002-1

Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Jose Abelardo Amaya-Portillo (Amaya) appeals his sentence following his

guilty plea conviction for illegal reentry into the United States. Amaya was

sentenced to 24 months of imprisonment, which constituted an upward variance

from his advisory guidelines range of 8 to 14 months of imprisonment, and three

years of supervised release. He contends that his sentence is greater than

necessary to satisfy the requirements of 18 U.S.C. § 3553(a).

United States Court of Appeals

Fifth Circuit

F I L E D

October 20, 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.

Case: 11-50162 Document: 00511638720 Page: 1 Date Filed: 10/20/2011
No. 11-50162

The district court found that the Guidelines “do not adequately account for

all of the criminal convictions that in this defendant’s background.” The court

noted six adult convictions that did not score any criminal history points, and

the court found that the history and characteristics of the defendant, the need

to promote respect for the law, and the need to protect the public were not

adequately served by the advisory guideline range. In overruling Amaya’s

objection to the sentence, the court also noted Amaya’s prior 18-month sentence

for a prior illegal reentry conviction and indicated that a higher sentence was

necessary in order to afford adequate deterrence to criminal conduct. Thus, the

district court made an individual assessment and concluded that the advisory

guidelines range gave insufficient weight to some of the sentencing factors. See

United States v. Williams, 517 F.3d 801, 809 (5th Cir. 2008). Amaya’s

above-guidelines sentence was reasonable in light of “the totality of the

circumstances,” and we “must give due deference to the district court’s decision

that the § 3553(a) factors, on a whole, justify the extent of the variance.” Gall

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

Amaya characterizes his criminal history as relatively minor, but his

criminal history includes numerous convictions and arrests for serious offenses

and supports the district court’s upward variance. See United States v.

Herrera-Garduno, 519 F.3d 526, 531 (5th Cir. 2008). He complains that § 2L1.2

increases a defendant’s offense level based on criminal history, which Chapter 4

of the Guidelines also take into account. Only one of Amaya’s prior sentences

scored criminal history points under Chapter 4. In any case, we have rejected

the contention that the use of a prior conviction both to increase the offense level

and to calculate the criminal history category is impermissible. United States

v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009). We have also rejected the

argument that a sentence is excessive because illegal reentry is a trespassing

crime. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). 

AFFIRMED. 

2

Case: 11-50162 Document: 00511638720 Page: 2 Date Filed: 10/20/2011