USA v. Jesus Dominguez-Portillo
UNPUBLISHED OPINION FILED. [17-40475 Affirmed] Judge: PEH, Judge: EHJ, Judge: JES. [17-40475]
Date Filed: 11/10/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
November 10, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
JESUS ALFONSO DOMINGUEZ-PORTILLO,
Appeal from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
Jesus Dominguez-Portillo appeals the eighteen-month sentence for
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 11/10/2017
having been found unlawfully in the United States following removal. He
contends that his sentence above the advisory guideline range of zero to six
months was procedurally and substantively unreasonable.
Dominguez-Portillo maintains that the district court erred procedurally
by failing adequately to explain the extent of the upward variance. To the
contrary, however, the court relied on proper factors and provided a sufficient
explanation. See United States v. Smith, 440 F.3d 704, 707−08 (5th Cir. 2006).
In stating its reasons for a non-guideline sentence, the court considered
Dominguez-Portillo’s history and characteristics, and it noted the need to
reflect the seriousness of the offense, to promote respect for the law, to provide
just punishment, to afford adequate deterrence, and to protect the public.
Dominguez-Portillo claims that the sentence was substantively unreasonable given the above-noted, alleged procedural errors and because the
district court gave undue weight to his “extremely limited” criminal history
and failed to give appropriate weight to the applicable guideline range. There
is no indication, however, that the court failed to account for a factor that
should have received significant weight, gave significant weight to any improper factor, or made a clear error of judgment in balancing the relevant
factors. See id. at 708. Further, the court tied the above-noted reasons to specific facts and particular 18 U.S.C. § 3553(a) factors sufficient to justify the
variance. See Gall v. United States, 552 U.S. 38, 49−53 (2007). Although the
variance was significant, it was not substantively unreasonable. See, e.g.,
United States v. McElwee, 646 F.3d 328, 344-45 (5th Cir. 2011); United States
v. Saldana, 427 F.3d 298, 315−16 (5th Cir. 2005).
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