United States v. Hernandez-Perez ( 2023 )

Case: 22-50978 Document: 00516865907 Page: 1 Date Filed: 08/21/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50978
Summary Calendar FILED
____________ August 21, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Luis Alberto Hernandez-Perez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:22-CR-166-1
______________________________
Before Barksdale, Engelhardt, and Wilson, Circuit Judges.
Per Curiam: *
Luis Alberto Hernandez-Perez contests the, inter alia, 71-months’
imprisonment sentence imposed subsequent to his guilty plea to illegal
reentry into the United States, in violation of 8 U.S.C. § 1326 (prohibiting
reentry of removed aliens). After sustaining Hernandez’ objection, the
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-50978
district court recalculated his advisory Sentencing Guidelines range to be 57
to 71-months’ imprisonment.
Hernandez maintains the court erred by improperly applying a
presumption of reasonableness to the advisory sentencing range and
imposing a substantively unreasonable sentence. He further contends our
court should not apply a presumption of reasonableness to his sentence
because Guideline § 2L1.2 (outlining Guidelines for “Unlawfully Entering or
Remaining in the United States”) lacks an empirical basis, and raises the
constitutionality of 8 U.S.C. § 1326(b).
Although post-Booker, the Sentencing Guidelines are advisory only,
the district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 46, 51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de
novo; its factual findings, only for clear error. E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Hernandez raises a procedural sentencing error by contending the
district court improperly applied a presumption of reasonableness to a
within-Guidelines sentence. E.g., United States v. King, 541 F.3d 1143, 1144–
45 (5th Cir. 2008) (applying plain-error standard of review to a claim of
procedural sentencing error not preserved in district court). Because
Hernandez did not raise this issue in district court, review is only for plain
error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012).
Under that standard, Hernandez must show a forfeited plain error
(clear-or-obvious error, rather than one subject to reasonable dispute) that
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affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes that showing, we have the discretion to correct the
reversible plain error, but generally should do so only if it “seriously affect[s]
the fairness, integrity, or public reputation of judicial proceedings”. Id.(citation omitted).
The district court concluded the advisory Guidelines sentencing
range was fair and reasonable; it did not expressly apply a presumption of
reasonableness or require Hernandez to prove extraordinary circumstances
before imposing a non-Guidelines sentence. See King, 541 F.3d at 1145.
There is no indication the court improperly applied a presumption of
reasonableness to the sentencing range. Therefore, Hernandez has not
shown the requisite clear or obvious error. See Puckett, 556 U.S. at 135.
Hernandez preserved his substantive reasonableness challenge by
advocating for a shorter sentence than imposed by the district court;
therefore, as discussed above, our court reviews for an abuse of discretion.
See Holguin-Hernandez v. United States, 140 S. Ct. 762, 766–67 (2020) (“A
defendant . . . , by advocating for a particular sentence, . . . has thereby
informed the court of the legal error at issue . . . .”). After correctly
calculating the advisory Guidelines sentencing range and considering the
recommendations in the presentence investigation report, counsel’s
assertions, Hernandez’ allocution, and the 18 U.S.C. § 3553(a) sentencing
factors, the district court concluded a sentence within the advisory
Guidelines sentencing range was appropriate. Hernandez’ within-
Guidelines sentence is presumptively reasonable. See United States v.
Naidoo, 995 F.3d 367, 382 (5th Cir. 2021). His contentions that the
Guidelines sentencing range overrepresented his criminal offense and
history, and that the district court did not adequately consider he fled to the
United States to escape harm, are insufficient to rebut that presumption. He
essentially asks our court to reweigh the 18 U.S.C. § 3553(a) sentencing
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factors and substitute our judgment on appeal, which our court will not do.
E.g., United States v. Hernandez, 876 F.3d 161, 167 (5th Cir. 2017).
Further, as Hernandez concedes, his contention our court should not
afford a presumption of reasonableness to his sentence because Guideline
§ 2L1.2 lacks an empirical basis is foreclosed. See United States v. Mondragon-
Santiago, 564 F.3d 357, 366–67 (5th Cir. 2009) (applying the appellate
presumption despite defendant’s assertions Guideline § 2L1.2 lacks
empirical basis). He raises the issue to preserve it for possible further review.
Finally, Hernandez contends 8 U.S.C. § 1326(b) is unconstitutional
because it permits a sentence above the otherwise applicable statutory
maximum based on facts not alleged in the indictment or found by a jury
beyond a reasonable doubt. He concedes this contention is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235, 239–46 (1998)
(holding existence of prior aggravated-felony conviction is “sentencing
factor” a court, rather than jury, can determine). See United States v. Pervis,
937 F.3d 546, 553–54 (5th Cir. 2019) (“It remains the case that the district
court can resolve the question of a prior conviction, and so we reject
[defendant]’s argument.”); United States v. Wallace, 759 F.3d 486, 497 (5th
Cir. 2014). This issue is raised to preserve it for possible further review.
AFFIRMED.
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