IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40633

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

EDUARDO DEL ANGEL-CASTILLO,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:16-CR-65-1

Before JONES, WIENER, and CLEMENT, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Eduardo Del Angel-Castillo (“Del Angel”) pleaded 

guilty to being an alien found to be in the United States unlawfully after a 

previous removal, in violation of 8 U.S.C. § 1326(a). His Presentence 

Investigation Report (“PSR”) calculated a guidelines sentencing range of one 

to seven months. The PSR recited in detail the circumstances of Del Angel’s 

arrest for sexual assault and aggravated assault with a deadly weapon after

 

* 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

December 6, 2016

Lyle W. Cayce

Clerk

 Case: 16-40633 Document: 00513785853 Page: 1 Date Filed: 12/06/2016
No. 16-40633

2

raping his girlfriend and threatening her with a knife. Del Angel pleaded 

guilty to one count of sexual assault and received eight years of deferred 

adjudication. One count of aggravated assault with a deadly weapon was 

dismissed.

The district court varied upward and sentenced Del Angel to the 

statutory maximum of 24 months of imprisonment based on his violent history 

and characteristics and the need to protect the public. Del Angel now 

challenges the procedural and substantive reasonableness of his sentence. We

first review for significant procedural error. See United States v. Hebert, 813 

F.3d 551, 559 (5th Cir. 2015), ), cert. denied 2016 WL 1134360 (U.S. Oct. 3, 

2016) (No. 15-1190). “Second, if the sentence is procedurally sound or if the 

procedural error is harmless, this Court ‘considers the substantive 

reasonableness of the sentence imposed under an abuse-of-discretion 

standard.’” Hebert, 813 F.3d at 559 (alteration omitted) (quoting United States 

v. Robinson, 741 F.3d 588, 598 (5th Cir. 2015)).1

With respect to procedural reasonableness, the district court was 

entitled to rely on the detailed factual recitation in the PSR regarding Del 

Angel’s assaults on his girlfriend, which was based on the results of a police 

investigation and not rebutted by any evidence or testimony submitted by Del 

Angel. See United States v. Fuentes, 775 F.3d 213, 219-20 (5th Cir. 2014). 

Although the district court was apparently mistaken that Del Angel had been 

convicted of aggravated assault with a deadly weapon as well as sexual assault, 

we are persuaded that the error was harmless. See United States v. TorresPerez, 777 F.3d 764, 768 (5th Cir. 2015). The district court explicitly stated its 

intention to impose the longest sentence of imprisonment available based on 

 

1 We will assume that Del Angel preserved the issues he now raises on appeal because 

his arguments fail even under a more lenient standard of review.

 Case: 16-40633 Document: 00513785853 Page: 2 Date Filed: 12/06/2016
No. 16-40633

3

Del Angel’s history of violent conduct, and the government persuasively argues 

that nothing in the record indicates that the district court would have imposed 

a sentence below the statutory maximum if it had correctly noted that Del 

Angel’s violent conduct had resulted in only one conviction instead of two. See 

United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009).

With respect to substantive reasonableness, the district court was 

entitled to consider Del Angel’s criminal history and the underlying

circumstances of the assaults on his girlfriend. See United States v. VargasSoto, 700 F.3d 180, 184 (5th Cir. 2012). The above-guidelines sentence imposed 

was “commensurate with the individualized, case-specific reasons provided by 

the district court” and within the range of upward variances we have affirmed 

in the past. See United States v. McElwee, 646 F.3d 328, 338, 344-45 (5th Cir. 

2011). Considering our deferential review, Del Angel’s contention that the 

district court put too much weight on his criminal history and his disagreement 

with the magnitude of the variance is insufficient to warrant reversal. See Gall 

v. United States, 552 U.S. 38, 51 (2007); Hebert, 813 F.3d at 562.

AFFIRMED.

 Case: 16-40633 Document: 00513785853 Page: 3 Date Filed: 12/06/2016