United States v. Portillo-Orellana
Docket: No. 07-41118
Court: Court of Appeals for the Fifth Circuit; August 18, 2009; Federal Appellate Court
Jose Leandro Portillo-Orellana appeals his 52-month sentence for illegal reentry under 8 U.S.C. § 1326, arguing that the district court failed to adequately explain its reasons for imposing a within-guidelines sentence and for denying his request for a below-guidelines sentence. The review of the sentencing decision is under an abuse-of-discretion standard. Portillo did not raise these challenges in the district court, so the appeal is evaluated for plain error, which requires showing a clear or obvious forfeited error affecting substantial rights. The court acknowledges that the district court erred by not providing sufficient explanation for the sentence. However, Portillo did not demonstrate that this error affected his substantial rights, as he could not show that the sentence would have differed without the error. Portillo also contends that the U.S.S.G. § 2L1.2, used to calculate his sentencing range, was not promulgated according to standard procedures and lacked empirical backing. This argument has been previously rejected. Furthermore, he claims that Supreme Court decisions in Gall and Kimbrough expanded the district court's discretion to impose a non-guidelines sentence. The court found no indication that the district court felt constrained by precedent or believed it could not vary from the guidelines. Ultimately, the appeal is denied, and the district court's judgment is affirmed. The opinion is designated as non-precedential under 5th Cir. R. 47.5, except in limited circumstances.