United States v. Hernandez-Portillo

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 26, 2023
• Docket: 23-2059
• Status: Unpublished

Opinion

Appellate Case: 23-2059 Document: 010110973937 Date Filed: 12/26/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 26, 2023 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-2059 (D.C. No. 2:22-CR-01296-MIS-1) RICARDO HERNANDEZ-PORTILLO, (D. N.M.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HARTZ, MATHESON, and EID, Circuit Judges. _________________________________

Ricardo Hernandez-Portillo pled guilty to illegal reentry into the United States.

The district court sentenced him to sixty months’ imprisonment, varying upward

from the U.S. Sentencing Guidelines range of twenty-four to thirty months’

imprisonment. Mr. Hernandez-Portillo appeals, arguing his sentence was

substantively unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291 and

18 U.S.C. § 3742, we affirm.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-2059 Document: 010110973937 Date Filed: 12/26/2023 Page: 2

I. BACKGROUND

Mr. Hernandez-Portillo is a seventy-year-old native and citizen of Honduras.

He moved to the United States in 1974. Between 1977 and 2000, Mr. Hernandez-

Portillo was convicted of several state crimes including: theft, burglary, assault,

third-degree assault, using force against another, and first-degree negligent driving.

During that period, he faced additional criminal charges that were either dismissed or

where the disposition is unknown. 1

In 2012, a Washington state court convicted him of felony child molestation.

His victim was a six-year-old girl. For that offense, he was sentenced to sixty-eight

months to life in prison, a lifetime of community custody, and a lifetime of sex-

offender registration. He was released after ten years. Upon his release in March

2022, Mr. Hernandez-Portillo was removed from the United States and returned to

Honduras.

Three months later, in June 2022, he was arrested in New Mexico and pled

guilty to illegal reentry. See 8 U.S.C. § 1326(a)(1)–(2), (b)(2). A presentence

investigation report (“PSR”) summarized Mr. Hernandez-Portillo’s criminal history,

setting his criminal history category at III and his total-offense level at fifteen. Based

on his offense level and criminal history category, the PSR found the Guidelines

1 Mr. Hernandez-Portillo has no known criminal history from 2001 through 2011. However, in June 2002, he was removed from the United States and returned to Honduras—it is unclear how long he stayed in Honduras or when he returned to the United States.

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sentencing range was twenty-four to thirty months’ imprisonment. The PSR also

noted that the applicable statutory maximum sentence was twenty years’

imprisonment. Neither party objected to the PSR.

Prior to the sentencing hearing, the district court advised the parties it was

considering an upward variance and allowed them to file responses. For punishment,

the government argued an upward variance to at least forty-eight months’

imprisonment was appropriate, whereas Mr. Hernandez-Portillo opposed an upward

variance and argued a sentence within the Guidelines range would be sufficient.

At sentencing, the district court adopted the PSR’s factual findings and stated

it had considered, inter alia, the sentencing factors under 18 U.S.C. § 3553(a), the

sentencing memoranda, and the parties’ arguments and filings. Ultimately, the

district court sentenced Mr. Hernandez-Portillo to sixty months’ imprisonment. He

now appeals, challenging the sentence as substantively unreasonable.

II. DISCUSSION

“We review a district court’s sentencing decision for substantive

reasonableness under an abuse-of-discretion standard . . . .” United States v.

Cookson, 922 F.3d 1079, 1090 (10th Cir. 2019). This standard applies “[r]egardless

of whether the sentence imposed is inside or outside the Guidelines range.” Gall v.

United States, 552 U.S. 38, 51 (2007).

We will reverse only if the sentence was “arbitrary, capricious, whimsical, or

manifestly unreasonable,” or if the district court “exceeded the bounds of permissible

choice, given the facts and the applicable law in the case at hand.” United States v.

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DeRusse, 859 F.3d 1232, 1236 (10th Cir. 2017) (internal quotation marks omitted). Our

focus is on “whether the length of the sentence is reasonable given all the

circumstances of the case in light of the [§ 3553(a)] factors.” Cookson, 922 F.3d at

1091 (internal quotation marks omitted). Those factors are: (1) the nature and

circumstances of the offense and the history and characteristics of the defendant;

(2) the need for a sentence to reflect the seriousness of the crime, deter future

criminal conduct, protect the public, and provide rehabilitation; (3) the legally

available sentences; (4) the Sentencing Guidelines; (5) the Sentencing Commission’s

policy statements; (6) the need to avoid unwarranted disparities among sentences;

and (7) the need for restitution. See 18 U.S.C. § 3553(a).

In conducting our analysis, “[w]e do not reweigh the sentencing factors but

instead ask whether the sentence fell within the range of rationally available choices

that facts and the law at issue can fairly support.” United States v. Blair, 933 F.3d

1271, 1274 (10th Cir. 2019) (internal quotation marks omitted). And we will “uphold

even substantial variances when the district court properly weighs the § 3553(a)

factors and offers valid reasons for the chosen sentence.” United States v. Barnes,

890 F.3d 910, 916 (10th Cir. 2018); see also Gall, 552 U.S. at 51 (noting that the

sentencing court “is in a superior position to find facts and judge their import under

§ 3553(a) in the individual case”).

Mr. Hernandez-Portillo challenges his sentence as substantively unreasonable

for four reasons, none of which is persuasive. First, he emphasizes facts that he

argues warrant a shorter sentence, including his advanced age and health issues, the

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nature and circumstances underlying his illegal-reentry offense, 2 and that this was his

first immigration conviction. Second, Mr. Hernandez-Portillo contends that the

district court’s reasoning does not fairly support the upward variance, suggesting the

district court placed too much weight on his criminal history because the Guidelines

already accounted for it. Third, he argues the Guidelines and related Sentencing

Commission policy statements (regarding a defendant’s age, physical condition, and

criminal history category not adequately reflecting a defendant’s criminal history)

conflict with the upward variance. And fourth, Mr. Hernandez-Portillo asserts the

variance creates an undue sentencing disparity.

In our view, his first three arguments amount to disagreement with the way the

district court balanced the § 3553(a) factors and the facts of Mr. Hernandez-Portillo’s

case. And this court does not reweigh the sentencing factors. Blair, 933 F.3d at

1274. Moreover, “no algorithm exists that instructs the district judge how to

combine the factors or what weight to put on each one,” Barnes, 890 F.3d at 916, and

“we will defer on substantive-reasonableness review not only to a district court’s

factual findings but also to its determinations of the weight to be afforded to such

findings,” Cookson, 922 F.3d at 1094 (internal quotation marks omitted).

2 He asserts that approximately a month after his March 2022 removal to Honduras, his ninety-three-year-old mother’s caretaker called and “told him he needed to come back right away if he wanted to see his mother again before she died.” Aplt. Opening Br. at 2. He further explains that immigration officials arrested him without incident. 5 Appellate Case: 23-2059 Document: 010110973937 Date Filed: 12/26/2023 Page: 6

In rendering its sentencing decision, the district court referenced myriad

considerations specific to Mr. Hernandez-Portillo and his crime. For example, the

district court acknowledged that Mr. Hernandez-Portillo is seventy years old, that he

suffers from various health issues, that his mother is elderly and in failing health, that

this was his first immigration conviction, and that he may not have understood the

consequences of returning to the United States.

Conversely, the court expressed concern about Mr. Hernandez-Portillo’s

lengthy criminal history, which involved violent conduct. Relatedly, it noted that he

had multiple protective orders against him. The court was particularly concerned

about the egregiousness of his 2012 conviction for felony child molestation,

emphasizing that he sexually assaulted a six-year-old child. The court was also

troubled that serving ten years’ imprisonment and being subject to lifetime

community supervision for the child sex crime was not sufficient deterrence for

Mr. Hernandez Portillo to illegally reenter the United States only three months after

his removal. Finally, the district court said that, given these aggravating factors, the

sentence it imposed was necessary to protect the public, impart the seriousness of the

offense, deter future criminal conduct, promote respect for the law, and provide just

punishment for Mr. Hernandez-Portillo’s crime.

The district court thoroughly supported its variance with detailed analysis and

valid reasoning. See Barnes, 890 F.3d at 917 (“A sentence is more likely to be

within the bounds of reasonable choice when the court has provided a cogent and

reasonable explanation for it.”). Additionally, the court had “broad discretion to

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consider” Mr. Hernandez-Portillo’s criminal history even though it was “already

accounted for in the advisory guidelines range.” Id. at 921 (internal quotation marks

omitted). In fact, the Guidelines explicitly consider the possibility of upward

variances when “reliable information indicates that the defendant’s criminal history

category substantially under-represents the seriousness of the defendant’s criminal

history or the likelihood that the defendant will commit other crimes.” U.S.S.G.

§ 4A1.3(a)(1).

Mr. Hernandez-Portillo’s argument that policy statements contradict the

upward variance is also unavailing. The court properly considered the mitigating

factors discussed in the policy statements and determined that aggravating factors in

his case outweighed them and necessitated the upward variance. See Barnes,

890 F.3d at 916; Cookson, 922 F.3d at 1094. Mr. Hernandez-Portillo’s disagreement

with the way the district court balanced the § 3553(a) factors with the facts of his

case does not make his sentence substantively unreasonable.

Turning to the fourth argument, Mr. Hernandez-Portillo contends “[t]he

upward variance created an unwarranted sentencing disparity between [himself] and

defendants with similar records who have been found guilty of similar conduct.”

Aplt. Opening Br. at 18. In support, he cites data to compare his sentence to the

average and median lengths of sentences imposed on others convicted of illegal

reentry who shared his criminal history category and offense level—nineteen months

and eighteen months, respectively—and notes that his sixty-month sentence “is more

than triple the median.” Id. at 20. Mr. Hernandez-Portillo further emphasizes that

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sixty-one percent of the offenders in the comparison group received downward

variances, while thirty-seven percent received sentences within the Guidelines range.

Essentially, he argues that his sentence was substantively unreasonable because it

was longer than those imposed in numerous other cases. We remain unconvinced.

Significant sentencing disparity alone does not require reversal. See Barnes,

890 F.3d at 916 (We will “uphold even substantial variances when the district court

properly weighs the § 3553(a) factors and offers valid reasons for the chosen

sentence.”). And although “similar offenders engaged in similar conduct should be

sentenced equivalently, disparate sentences are allowed where the disparity is

explicable by facts on the record.” United States v. Davis, 437 F.3d 989, 997

(10th Cir. 2006) (internal quotation marks omitted). After all, “consideration of

unwarranted sentence disparities is but one factor that a district court must balance

against the other § 3553(a) factors in arriving at an appropriate sentence.” United

States v. Martinez, 610 F.3d 1216, 1228 (10th Cir. 2010). Here, the district court did

not abuse its discretion when it afforded more weight to other factors and determined

those factors warranted an above-Guidelines sentence.

In sum, Mr. Hernandez-Portillo has not demonstrated that the district court’s

sentence was “arbitrary, capricious, whimsical, or manifestly unreasonable,” or that it

“exceeded the bounds of permissible choice, given the facts and the applicable law in the

case at hand.” DeRusse, 859 F.3d at 1236 (internal quotation marks omitted). We

therefore hold the district court did not abuse its discretion when it imposed

Mr. Hernandez-Portillo’s sentence.

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III. CONCLUSION

Under our deferential standard of review, Mr. Hernandez-Portillo has not

demonstrated his sentence was substantively unreasonable. We affirm the district

court’s judgment.

Entered for the Court

Allison H. Eid Circuit Judge