United States v. Hector Hernandez ( 2011 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 17, 2011
No. 10-50474
consolidated with Lyle W. Cayce
No. 10-50479 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
HECTOR ERNESTO HERNANDEZ,
Defendant - Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:10-CR-109-1
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Hector Ernesto Hernandez was found guilty following a bench trial of one
count of unlawful reentry into the United States in violation of 8 U.S.C. § 1326.
The district court sentenced him to 27 months in prison, at the bottom of the
guidelines range of 27 to 33 months. The court separately revoked his term of
supervised release and sentenced him to a consecutive three-month prison term.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 10-50474
c/w No. 10-50479
Hernandez now appeals, asserting that the 27-month sentence is substantively
unreasonable. We affirm.
The record reveals that Hernandez’s counsel properly objected to the
sentence after it was imposed. We thus review the reasonableness of his
sentence under a deferential abuse-of-discretion standard. Gall v. United States,
552 U.S. 38, 51-52 (2007). Because the sentence fell within a properly calculated
guidelines range, the sentence is entitled to a rebuttable presumption of
reasonableness. United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
Hernandez first contends that Section 2L1.2 of the United States
Sentencing Guidelines represents a flawed exercise of the Sentencing
Commission’s role and leads to double-counting of criminal history, which results
in an excessive sentence and is not sound policy. Although the district court had
the discretion to consider such policy arguments, its failure to do so does not
necessarily render the sentence unreasonable. See United States v. Duarte, 569
F.3d 528, 529-31 (5th Cir. 2009). As Hernandez properly concedes, his corollary
argument that because Section 2L1.2 is flawed, the presumption of
reasonableness should not apply, is foreclosed. See United States v. Mondragon-
Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
Hernandez next argues that the Guidelines range overstates the
seriousness of his reentry offense, which he asserts is not a crime of violence or
dangerous to others but was simply a trespassory offense. Without reaching the
specific merits of this argument, we note that Hernandez committed a federal
felony for which Congress has provided significant penalties without regard to
whether the unlawful entry itself is violent, and he committed the same offense
previously. In any event, Hernandez’s disagreement with the policy of the
Guidelines is not sufficient to show that the court abused its discretion. See
Duarte, 569 F.3d at 530-31; see also United States v. Aguirre-Villa, 460 F.3d 681,
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No. 10-50474
c/w No. 10-50479
683 (5th Cir. 2006) (affirming a within-guidelines sentence where the defendant
argued, inter alia, that his offense constituted only an international trespass).
We next turn to Hernandez’s assertion that the district court did not take
into account his history and characteristics, including his motive for reentering,
the years he spent living and working in the United States, and the effect on his
life of a prior conviction arising out of a car accident that he was involved in as
a passenger. The district court heard Hernandez’s arguments, recited the
appropriate Section 3553(a) factors, and pointed to specific facts, including
Hernandez’s criminal history, his prior conviction for unlawful reentry, and his
contention that he chose a bench trial that did not consume many resources.
Hernandez’s mere disagreement with the court’s assessment of the sentencing
factors is not enough to rebut the presumption of reasonableness. See Cooks, 589
F.3d at 186.
Finally, Hernandez raises no claims of error with respect to the revocation
proceeding or the three-month revocation sentence. Thus, he has abandoned any
issues on appeal regarding the revocation judgment. See United States v.
Willingham, 310 F.3d 367, 371 (5th Cir. 2002).
For the foregoing reasons, the judgments of the district court are
AFFIRMED.
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