United States v. Braulio Luna-Hernandez , 617 F. App'x 348 ( 2015 )

Case: 15-50046 Document: 00513215453 Page: 1 Date Filed: 10/01/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-50046 FILED
Summary Calendar October 1, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BRAULIO LUNA-HERNANDEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:14-CR-500
Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
PER CURIAM: *
Braulio Luna-Hernandez appeals the 41-month sentence imposed
following his guilty plea conviction for illegal reentry following prior removal.
He argues that his sentence, which is at the low end of the applicable
guidelines range, is greater than necessary to meet the sentencing objectives
of 18 U.S.C. § 3553(a). Luna-Hernandez contests the application of U.S.S.G.
§ 2L1.2, the illegal reentry guideline, on the basis that it is not empirically
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-50046
based, double counts prior convictions, and does not account for the nonviolent
nature of his offense, which he asserts is an “international trespass.” He also
contends that the district court did not account for his personal circumstances,
specifically that he reentered the United States to find work to support his
family, that this was his first immigration offense, and that this was the first
time he returned to the United States since his deportation in 2008.
Luna-Hernandez did not object to the reasonableness of his sentence
and, thus, our review is for plain error. See United States v. Peltier, 505 F.3d
389, 391-92 (5th Cir. 2007). Luna-Hernandez acknowledges that we apply
plain error review when a defendant fails to object to the reasonableness of the
sentence imposed in the district court; however, he seeks to preserve this issue
for further review.
As Luna-Hernandez recognizes, his assertion that the presumption of
reasonableness should not apply because § 2L1.2 lacks an empirical basis is
foreclosed, and he raises it to preserve it for further review. See United States
v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009). We likewise
have rejected his contention that a within-guidelines sentence is unreasonable
because § 2L1.2 effectively double counts prior convictions. United States v.
Duarte, 569 F.3d 528, 529-30 (5th Cir. 2009). Also, we have not been persuaded
by the claim that the Sentencing Guidelines do not take into account the
nonviolent nature of an illegal reentry offense. See United States v. Aguirre-
Villa, 460 F.3d 681, 683 (5th Cir. 2006).
With regard to Luna-Hernandez’s claim that his sentence did not reflect
his personal history and circumstances, the district court considered his
arguments that a lesser sentence was warranted on those grounds and
determined that a sentence within the guidelines range was proper. We will
give “great deference” to a properly calculated within-guidelines sentence, see
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No. 15-50046
United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005), and Luna-
Hernandez has not demonstrated that the district court’s presumptively
reasonable choice of sentence was erroneous. See United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009). His assertions on appeal are insufficient to rebut
the presumption of reasonableness. See United States v. Gomez-Herrera, 523
F.3d 554, 565-66 (5th Cir. 2008).
Accordingly, the judgment of the district court is AFFIRMED.
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