United States Court of Appeals

for the Fifth Circuit

No. 20-11150

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Manuel Nunez-Gonzalez, 

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:20-CR-55-1

Before Smith, Stewart, and Graves, Circuit Judges.

Per Curiam:*

Manuel Nunez-Gonzalez appeals the sentence imposed following his 

conviction for illegal reentry following removal in violation of 8 U.S.C. 

§ 1326(a) and (b)(2). He first contends that, based upon Apprendi v. New 

Jersey, 530 U.S. 466 (2000), his sentence is unconstitutional because 

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opinion should not be published and is not precedent except under the limited 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

September 8, 2021

Lyle W. Cayce

Clerk

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No. 20-11150

2

§ 1326(b) permits a sentence above the otherwise applicable statutory 

maximum found in § 1326(a) without requiring that the necessary facts be 

alleged in an indictment and proven beyond a reasonable doubt. We review 

for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009). NunezGonzalez properly concedes that his position is foreclosed by AlmendarezTorres v. United States, 523 U.S. 224, 226−27 (1998). See United States v. 

Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007). He seeks only to 

preserve the issue for further review. There is no error, plain or otherwise. 

Nunez-Gonzalez also argues that his 72-month above-guidelines 

sentence is substantively unreasonable because it is greater than necessary to 

achieve the goals of § 3553(a). He states that the district court gave too much 

weight to the fact that he reentered the United States only one day following 

his second removal to Mexico and that it failed to account for or to give 

enough weight to the fact that he was forcibly returned to the United States 

by a cartel. He argues that his sentence is extremely harsh considering it was 

ordered to run consecutively to two 15-year state sentences.

His challenge to the substantive reasonableness of his sentence was 

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

(2020). 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.” United States v. Brantley, 

537 F.3d 347, 349 (5th Cir. 2008) (internal quotation marks and citation 

omitted). A sentence is substantively unreasonable if it ignores a factor that 

should have been given considerable weight, heavily weighs an improper 

factor, or is the result of “a clear error of judgment in balancing the 

sentencing factors.” United States v. Chandler, 732 F.3d 434, 437 (5th Cir. 

2013) (internal quotation and citations omitted).

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The record shows that the district court gave due consideration to the 

§ 3553(a) factors. Notably, notwithstanding the circumstances of NunezGonzalez’s second illegal reentry, the district court’s finding that there was 

a high likelihood that Nunez-Gonzalez would return to the United States and 

commit crimes was supported by the fact of his first illegal reentry, the fact 

that his family lives in the United States, his extensive criminal history, and 

the failure of previous sentences to deter him from criminal conduct.

Accordingly, Nunez-Gonzalez has not shown that his sentence is 

substantively unreasonable. See Chandler, 732 F.3d at 437. Moreover, the 

extent of the variance is similar to others we have affirmed. See Brantley, 537 

F.3d at 349-50; United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 

2008); United States v. Smith, 440 F.3d 704, 708-10 (5th Cir. 2006). The 

district court’s judgment is AFFIRMED.

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