Background
Pedro Hernandez-Vargas pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326. The U.S. District Court for the Western District of Texas sentenced him to 21 months of imprisonment, above the applicable guidelines range. The district court case was No. 2:25-CR-2568-1.
Hernandez-Vargas appealed to the Fifth Circuit, challenging only the substantive reasonableness of his sentence. The appeal was considered on the court’s summary calendar by Circuit Judges Haynes, Graves, and Ramirez, who issued an unsigned per curiam opinion. The opinion is not designated for publication under Fifth Circuit Rule 47.5.
The Court’s Holding
The Fifth Circuit affirmed. It explained that substantive reasonableness review considers “the totality of the circumstances, including the extent of any variance from the Guidelines range,” quoting United States v. Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir. 2012). Applying that standard, the court identified the considerations underlying the district court’s sentence: Hernandez-Vargas’s immigration history, his quick return, his pending criminal charges, and his likelihood of recidivism.
The panel rejected the premise that the district court could not rely on criminal history merely because that history had already been included in the guidelines calculations. It held that the sentencing court was entitled to rely on that history, citing United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008), and 18 U.S.C. § 3553(a)(1). The opinion therefore treats criminal history as a permissible sentencing consideration in this case even though it also affected the guidelines calculation.
The court also emphasized the relationship between the sentence and the statutory and comparative benchmarks before it. The 21-month sentence was “well within” the 10-year statutory maximum available under 8 U.S.C. § 1326(b)(1). It was also similar to or less than variances the Fifth Circuit had previously upheld. For those propositions, the court cited Lopez-Velasquez, 526 F.3d at 805-07, and United States v. Herrera-Garduno, 519 F.3d 526, 531-32 (5th Cir. 2008). The opinion’s sole disposition was: “AFFIRMED.”
Key Takeaways
- The Fifth Circuit affirmed Hernandez-Vargas’s 21-month, above-guidelines sentence for illegal reentry under 8 U.S.C. § 1326.
- Substantive reasonableness was assessed under the totality of the circumstances, including the extent of the variance from the guidelines range.
- The district court permissibly relied on immigration history, a quick return, pending criminal charges, and likelihood of recidivism.
- Criminal history could support the sentence even though it was already included in the guidelines calculations; the opinion does not announce a universal rule that every such reliance automatically establishes reasonableness.
- The sentence was well within the 10-year statutory maximum cited by the court and comparable to, or shorter than, variances previously upheld.
Why It Matters
The decision provides a concise example of the Fifth Circuit sustaining an above-guidelines illegal-reentry sentence where the district court relied on individualized circumstances rather than the guidelines range alone. In particular, it confirms that inclusion of criminal history in the guidelines calculation did not, on these facts, prevent the district court from also relying on that history when selecting the sentence.
Its practical reach should be stated carefully. This was a substantive-reasonableness challenge to one 21-month sentence, resolved through an unpublished per curiam opinion on the summary calendar. The court did not announce a categorical approval of all above-guidelines reentry sentences or all reliance on pending charges and recidivism risk. Its reasoning rested on the particular sentencing considerations identified in this case, the sentence’s distance below the statutory maximum, and its comparison with variances previously upheld.