IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-11055

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

VALENTIN AGUILAR-LOPEZ, also known as Tomas Aguilar-Lopez,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 6:17-CR-62-1

Before DAVIS, HAYNES, and GRAVES, Circuit Judges.

PER CURIAM:*

Valentin Aguilar-Lopez was convicted of illegal reentry after deportation 

and was sentenced above the guidelines range to 48 months of imprisonment, 

to be followed by three years of supervised release. He appeals. Aguilar-Lopez 

first challenges the substantive reasonableness of his sentence, arguing that it 

is greater than necessary to satisfy the sentencing goals set forth in 18 U.S.C. 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

March 21, 2019

Lyle W. Cayce

Clerk

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No. 18-11055

2

§ 3553(a). Aguilar-Lopez asserts that the sentence is more than twice the top 

end of his guidelines range.

In reviewing a non-guidelines sentence for substantive reasonableness, 

we consider “the totality of the circumstances, including the extent of any 

variance from the Guidelines range, to determine whether as a matter of 

substance, the sentencing factors in section 3553(a) support the sentence.” 

United States v. Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir. 2012) (internal 

quotation marks and citation omitted). In articulating its reasons for the 

sentence imposed, the district court noted that Aguilar-Lopez had been 

removed from the United States on four separate occasions and had six prior 

convictions. Additionally, the record shows that the court relied on permissible 

§ 3553(a) factors in determining that an above-guidelines sentence was 

appropriate, including the need to promote respect for the law, the need to 

provide adequate deterrence, and the need to protect the public from further 

crimes. Thus, the decision to vary above the advisory guidelines range was 

based on permissible factors that advanced the objectives set forth in § 3553(a). 

See United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).

Although the 48-month sentence is more than twice the 21 months at the 

top of the applicable guidelines range, we have upheld much greater variances. 

See, e.g., United States v. Key, 599 F.3d 469, 475-76 (5th Cir. 2010); United 

States v. Brantley, 537 F.3d 347, 348-50 (5th Cir. 2008). Based on the totality 

of the circumstances, including the significant deference that is due to a district 

court’s consideration of the § 3553(a) factors, the sentence imposed was not 

substantively unreasonable. See Gerezano-Rosales, 692 F.3d at 400-01.

Aguilar-Lopez also contends that his sentence exceeds the statutory 

maximum punishment for the offense charged in the indictment and that his 

guilty plea was unknowing and involuntary because he was not instructed on 

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No. 18-11055

3

an essential element of the offense. Regarding the validity of his guilty plea, 

Aguilar-Lopez contends that the district court failed to advise him that the 

felony provision of 8 U.S.C. § 1326(b)(1) was an essential element of the offense. 

As to his sentence, Aguilar-Lopez argues that it exceeds the two-year 

maximum set forth in § 1326(a) and, thus, violates the holding in Apprendi v. 

New Jersey, 530 U.S. 466 (2000). As he correctly concedes, these arguments 

are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). See 

United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. 

Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007).

Accordingly, the district court’s judgment is AFFIRMED.

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