United States v. Argueta-Portillo ( 2021 )

Case: 18-40955 Document: 00515701990 Page: 1 Date Filed: 01/11/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 11, 2021
No. 18-40955 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Leonidas Argueta-Portillo,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:18-CR-334-1
Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Leonidas Argueta-Portillo appeals from the sentence imposed
following his guilty plea conviction for illegal reentry, in violation of 8 U.S.C.
§ 1326(a) and (b)(1). He argues that (1) his sentence was substantively
unreasonable, and (2) the district court erred by including two unpronounced
*
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opinion should not be published and is not precedent except under the limited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.
Case: 18-40955 Document: 00515701990 Page: 2 Date Filed: 01/11/2021
No. 18-40955
conditions of supervised release in the written judgment. Although Argueta-
Portillo has been released from imprisonment, his challenges are not moot
because he is still subject to a term of supervised release. See United States v.
Heredia-Holguin, 823 F.3d 337, 342-45 (5th Cir. 2016) (en banc); United
States v. Vega, 960 F.3d 669, 672-75 (5th Cir. 2020).
Argueta-Portillo argues that the district court committed a clear error
in balancing the sentencing factors, thereby resulting in an above-guidelines
sentence that was substantively unreasonable. Because he specifically argued
for a sentence at the low end of the guidelines range, Argueta-Portillo
preserved this challenge. See Holguin-Hernandez v. United States, 140 S. Ct.
762, 766 (2020). We review sentences, whether inside or outside the
Guidelines, for reasonableness in light of the sentencing factors set forth in
18 U.S.C. § 3553(a) and the substantive reasonableness of a sentence for
abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). In
reviewing an above-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 the § 3553(a)
factors support the sentence. United States v. Gerezano-Rosales, 692 F.3d 393,
400 (5th Cir. 2012).
In this case, the district court relied on appropriate § 3553(a) factors
in determining that an upward variance was warranted, as its reasons
addressed Argueta-Portillo’s history and characteristics and the need to
deter Argueta-Portillo from future criminal conduct, protect the public,
promote respect for the law, and provide just punishment. We defer to the
district court’s determination that the § 3553(a) factors, on the whole,
warrant the variance, see Gerezano-Rosales, 692 F.3d at 401, and justify the
extent of the upward variance imposed, see United States v. Broussard, 669
F.3d 537, 551 (5th Cir. 2012). Argueta-Portillo’s argument essentially
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No. 18-40955
requests that we reweigh the § 3553(a) factors, which is not within the scope
of our review. See Gall, 552 U.S. at 51.
Argueta-Portillo challenges the following two conditions of
supervised release: (1) “You must immediately report to U.S. Immigration
and Customs Enforcement and follow all their instructions and reporting
requirements until any deportation proceedings are completed.”; and (2) “If
you reenter the United States, you must report to the nearest probation office
within 72 hours after your return.” Both conditions were included in the
appendix to the presentence report (PSR), and the district court adopted the
PSR after confirming that Argueta-Portillo had reviewed it. Moreover, the
sentencing court expressed its intent that Argueta-Portillo be deported and
specifically referenced a third condition of supervised release that ordered
him not to return to the United States after his deportation. Plain-error
review applies when the district court “notifies the defendant at sentencing
that conditions are being imposed.” United States v. Diggles, 957 F.3d 551,
559-60 (5th Cir. 2020) (en banc), cert. denied, 2020 WL 6551832 (U.S. Nov.
9, 2020) (No. 20-5836). In any event, given these circumstances, Argueta-
Portillo has not shown error, plain or otherwise. See United States v. Grogan,
977 F.3d 348, 351-54 (5th Cir. 2020); United States v. Vasquez-Puente, 922
F.3d 700, 703-05 (5th Cir. 2019).
The district court’s judgment is AFFIRMED.
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