United States v. Emilio Herrera-Cortez , 517 F. App'x 294 ( 2013 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 27, 2013
No. 12-40577 c/w
No. 12-40611 Lyle W. Cayce
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EMILIO HERRERA-CORTEZ,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 2:12-CR-61-1
USDC No. 2:12-CR-265-1
Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Emilio Herrera-Cortez appeals the 60-month sentence he received for his
guilty plea conviction for illegal reentry into the United States following previous
deportation. Herrera-Cortez also appeals the six-month consecutive sentence he
received following the revocation of his supervised release. He contends that
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40577 c/w No. 12-40611
both sentences are procedurally unreasonable because the district court failed
to adequately explain the chosen sentences.
Because Herrera-Cortez did not object on these procedural grounds in the
district court, as he acknowledges, review is for plain error. See United States
v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). Herrera-Cortez thus
must show an error that is clear or obvious and that affects his substantial
rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such
a showing, this court has the discretion to correct the error but only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.Our review of the sentencing record indicates that the district court did
not fail to consider the 18 U.S.C. § 3553(a) factors, nor did it err by failing to
sufficiently state reasons for imposing a within-guideline sentence of 60 months
for Herrera-Cortez’s most recent illegal reentry conviction. See United States
v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008). Similarly, the sentencing record
indicates that the district court considered the arguments presented and
provided a reasoned basis for imposing a six-month consecutive sentence upon
revocation of Herrera-Cortez’s supervised release. See United States v.
Whitelaw, 580 F.3d 256, 261 (2009) Accordingly, Herrera-Cortez has failed to
show plain error in connection with his procedural reasonableness argument.
See Puckett, 556 U.S. at 135.
Herrera-Cortez also contends that his 60-month sentence is substantively
unreasonable because it is greater than necessary to satisfy the sentencing goals
of § 3553(a). He argues that the sentence was “disproportional” because his
illegal reentry conviction amounts to “a victimless, harmless, territorial trespass
into the United States.” He also argues that his sentence fails to take into
account his cultural assimilation. Herrera-Cortez also contends that the
presumption of reasonableness afforded within-guidelines sentences is contrary
to the Supreme Court’s decisions in United States v. Booker, 543 U.S. 220 (2005)
2
No. 12-40577 c/w No. 12-40611
and Kimbrough v. United States, 552 U.S. 85 (2007). He further contends that
the 16-level enhancement under U.S.S.G. § 2L1.2 dissimilarly treats similarly
situated defendants because it double counts convictions and is not empirically
based. Because Herrera-Cortez did not object to the substantive reasonableness
of his sentence, his arguments are reviewed for plain error. See United States
v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
We have consistently rejected Herrera-Cortez’s “double counting”
argument and his argument that § 2L1.2 results in an excessive sentence
because it is not empirically based. See United States v. Duarte, 569 F.3d 528,
529-30 (5th Cir. 2009); United States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001).
Additionally, this court has rejected the argument that the Guidelines overstate
the seriousness of illegal reentry because it is simply an international trespass
offense. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
Further, Herrera-Cortez’s challenge to the presumption of reasonableness is
foreclosed. See Rita v. United States, 551 U.S. 338, 345-56 (2007).
The record reflects that the district court considered Herrera-Cortez’s
arguments for a “low end” guidelines sentence, including his cultural
assimilation argument. The district court, in fact, sentenced him to 60 months,
which is at the “low end” of the 57 to 71 months advisory guidelines range.
Herrera-Cortez has failed to rebut the presumption of reasonableness that is
accorded his within-guidelines sentence. See United States v. Gomez-Herrera,
523 F.3d 554, 565-66 (2008). He has thus failed to show that his sentence is
substantively unreasonable. See Gall, 552 U.S. at 51; Peltier, 505 F.3d at 391-
92. Accordingly, the judgment of the district court is AFFIRMED.
3