United States v. Portillo-Garcia
20-40722
| 5th Cir. | Sep 23, 2021Background
- Defendant Nehemias Portillo-Garcia was convicted under 8 U.S.C. § 1326(a) and (b)(2) for being an alien previously removed and found in the United States.
- The district court imposed a 35-month sentence, an upward variance above the Guidelines range.
- Portillo-Garcia appealed, arguing the sentence was substantively unreasonable: his sole prior conviction was nearly 15 years old, he remained outside the U.S. for over ten years after removal, he had a productive life in Guatemala, and the instant offense was his only immigration-related conviction.
- The parties disputed the standard of appellate review (plain error vs. abuse of discretion); the court assumed abuse of discretion because Portillo-Garcia could not prevail even under that standard.
- The district court explained its § 3553(a) analysis, emphasizing public protection, deterrence, and preventing reentry.
- The Fifth Circuit concluded the court had adequately considered § 3553(a), treated the variance consistently with precedent, and affirmed the sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review for appellate review of sentence | United States argued review standard (disputed) but court assumed abuse of discretion | Portillo-Garcia contested review standard (argued for plain error) | Court assumed abuse of discretion because defendant could not prevail under that standard |
| Substantive reasonableness of 35‑month upward variance | United States supported variance as justified by § 3553(a) factors (public protection, deterrence, preventing return) | Portillo-Garcia argued variance was excessive given remote prior conviction, long absence after removal, productive life abroad, and limited criminal history | Affirmed: district court did not abuse its discretion; sentence substantively reasonable |
Key Cases Cited
- United States v. Burney, 992 F.3d 398 (5th Cir. 2021) (addressing standard-of-review questions in sentencing appeals)
- United States v. Gerezano-Rosales, 692 F.3d 393 (5th Cir. 2012) (courts assess totality of circumstances, including extent of variance, when reviewing substantive reasonableness)
- United States v. Smith, 440 F.3d 704 (5th Cir. 2006) (sets three-category test for substantive-unreasonableness review)
- United States v. Brantley, 537 F.3d 347 (5th Cir. 2008) (affirming a comparable upward variance)
- United States v. Lopez-Velasquez, 526 F.3d 804 (5th Cir. 2008) (upholding similar non-Guidelines sentence variance)