IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-11090

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

BERTULIO MORENO-ALAVAREZ,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:17-CR-24-1

Before JOLLY, COSTA, and HO, Circuit Judges.

PER CURIAM:*

Bertulio Moreno-Alvarez appeals the 48-month above-guidelines 

sentence imposed in connection with his conviction for possession of a firearm 

by an illegal alien, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2). He 

challenges the substantive reasonableness of his sentence, arguing that the 

district court gave undue weight to his prior criminal history and did not give 

sufficient weight to his family circumstances. 

 

* 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

October 30, 2018

Lyle W. Cayce

Clerk

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No. 17-11090

2

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). While the district court commented on 

Moreno-Alvarez’s criminal history, the court also noted that Moreno-Alvarez 

had been removed from the United States on four occasions and continued to

enter the country illegally. The district court heard Moreno-Alvarez’s reasons 

for wishing to return to El Salvador. However, the record reflects that the 

district court was not persuaded and that it relied on permissible 18 U.S.C. § 

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

appropriate, including the history and characteristics of Moreno-Alvarez, the 

nature and circumstances of the offense, 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).

Additionally, although the 48-month sentence is twice the top of the 

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 

reasonable. See Gerezano-Rosales, 692 F.3d at 400.

Moreno-Alvarez also challenges the statute of conviction, arguing that it 

violates the Second Amendment and the Fifth Amendment’s Due Process 

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No. 17-11090

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Clause with respect to his equal protection rights. Because he did not raise 

these arguments in the district court, we review for plain error. See Puckett v. 

United States, 556 U.S. 129, 135 (2009); United States v. Coil, 442 F.3d 912, 

915-16 (5th Cir. 2006). Moreno-Alvarez fails to show plain error. See Puckett, 

536 U.S. at 135; United States v. Portillo-Munoz, 643 F.3d 437, 440-42 & n.4 

(5th Cir. 2011); United States v. Mirza, 454 F. App’x at 249, 258-59 (5th Cir. 

2011).

Accordingly, the judgment of the district court is AFFIRMED.

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