United States v. Tolentino-Cortes

Case: 25-50486 Document: 65-2 Page: 1 Date Filed: 05/14/2026

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 25-50486 Summary Calendar FILED ____________ May 14, 2026 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Gustavo Nabor Tolentino-Cortes, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 2:24-CR-3289-1 ______________________________ Before Higginbotham, Engelhardt, and Ramirez, Circuit Judges.

Per Curiam: * Gustavo Nabor Tolentino-Cortes appeals the 48-month sentence imposed for his conviction of illegal reentry in violation of 8 U.S.C. § 1326.

He contends that his upward-variant sentence is substantively unreasonable and complains that the district court gave insufficient weight to the

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 25-50486 Document: 65-2 Page: 2 Date Filed: 05/14/2026

No. 25-50486

Guidelines and too much weight to the aggravating factors present in his criminal and removal history.

The record in this case indicates the district court considered the Guidelines and the 18 U.S.C. § 3553(a) factors and chose to vary upwardly in light of Tolentino-Cortes’s criminal and removal history, which was within its discretion to do. See United States v. Diehl, 775 F.3d 714, 724 (5th Cir. 2015); 18 U.S.C. § 3553(a)(1) & (2)(A)-(C). He has not shown that the extent of the variance was unreasonable as it is similar to other variances we have affirmed. See, e.g., United States v. Lopez-Velasquez, 526 F.3d 804, 805, 807 (5th Cir. 2008).

Tolentino-Cortes has not demonstrated that the district court abused its discretion by imposing a sentence that unreasonably failed to reflect the § 3553(a) factors. See Diehl, 775 F.3d at 724. We therefore defer to the district court’s determination that the § 3553(a) factors, on the whole, warranted the variance. See id. AFFIRMED.