United States v. Orellana-Duron

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 11, 2026
• Docket: 25-50491
• Status: Unpublished

Opinion

Case: 25-50491 Document: 52-1 Page: 1 Date Filed: 03/11/2026

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 25-50491 Summary Calendar FILED ____________ March 11, 2026 Lyle W. Cayce United States of America, Clerk

Plaintiff—Appellee,

versus

Kevin Josue Orellana-Duron,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 2:24-CR-3113-1 ______________________________

Before Richman, Southwick, and Willett, Circuit Judges. Per Curiam: * Kevin Josue Orellana-Duron pleaded guilty to illegal reentry, in violation of 8 U.S.C. § 1326. The Guidelines range was 21–27 months’ imprisonment. The district court, however, sentenced him to 60 months, based on Orellana-Duron’s extensive immigration and criminal history. As to immigration, Orellana-Duron had been convicted of illegal entry once and

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 25-50491 Document: 52-1 Page: 2 Date Filed: 03/11/2026

No. 25-50491

illegal re-entry twice. Indeed, his last removal had preceded the instant illegal reentry offense by only three months. And for his criminal history, the district court pointed to Orellana-Duron’s “violent tendency,” as reflected in his prior convictions of assault, public intoxication, criminal mischief, assault, and petty larceny—the latter involving a threat to return to a local store with a machete if he was arrested. Orellana-Duron now brings a preserved challenge to the substantive reasonableness of the sentence. He argues that the district court merely recited the 18 U.S.C. § 3553(a) factors, improperly relied on factors already considered by the Guidelines, and failed to provide any justification for a variance that more than doubled the Guidelines range. We review a preserved claim of substantive unreasonableness for abuse of discretion, United States v. Zarco-Beiza, 24 F.4th 477, 480–81 (5th Cir. 2022), which requires us to consider “the totality of the circumstances, including the extent of any variance from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007). And we must be “highly deferential” to the district court “because the sentencing court is in a better position to find facts and judge their import.” United States v. Diehl, 775 F.3d 714, 724 (5th Cir. 2015) (internal citation omitted). Here, the district court “thoroughly and adequately articulated” the factors justifying the variance. See United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008). Orellana-Duron’s argument that the district court improperly relied on his criminal history when it was already accounted for in the Guidelines calculations is unavailing. We have rejected this double- counting argument before, noting that a “court is free” to conclude the guidelines range “gives too much or too little weight” to § 3553(a) factors— including the defendant’s history and characteristics. See Lopez-Velasquez, 526 F.3d at 807; see also 18 U.S.C. § 3553(a)(1).

2 Case: 25-50491 Document: 52-1 Page: 3 Date Filed: 03/11/2026

Although the variance here was significant, it is “commensurate with the individualized, case-specific reasons provided by the district court.” Diehl, 775 F.3d at 724 (internal citation omitted). We have upheld similar or greater variances in the past. See, e.g., Lopez-Velasquez, 526 F.3d at 806–07 (affirming a 72-month sentence where the Guidelines range was 24–30 months); United States v. Herrera-Garduno, 519 F.3d 526, 531–32 (5th Cir. 2008) (affirming a 60-month sentence where the Guidelines range was 21–27 months). The district court therefore did not abuse its discretion. AFFIRMED.