United States v. Jose Herrera-Mata , 623 F. App'x 198 ( 2015 )

Case: 15-50299 Document: 00513270168 Page: 1 Date Filed: 11/13/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-50299 FILED
Summary Calendar November 13, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE HERRERA-MATA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:14-CR-408
Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM: *
Jose Herrera-Mata pleaded guilty to illegal reentry after deportation in
violation of 8 U.S.C. § 1326 and was sentenced to 60 months of imprisonment
and three years of supervised release. Herrera-Mata challenges the
substantive reasonableness of his sentence, arguing that his sentence is
unreasonable because it is greater than necessary to achieve the sentencing
goals of 18 U.S.C. § 3553(a).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50299
We review sentences for substantive reasonableness, in light of the
§ 3553(a) factors, under an abuse of discretion standard. Gall v. United States,
552 U.S. 38, 49-51 (2007). A within-guidelines sentence is entitled to a
presumption of reasonableness. Rita v. United States, 551 U.S. 338, 347
(2007). “The presumption is rebutted only upon a showing that the sentence
does not account for a factor that should receive significant weight, it gives
significant weight to an irrelevant or improper factor, or it represents a clear
error of judgment in balancing sentencing factors.” United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009). Because the record reveals no objection to the
sentence other than a request for a sentence below the guidelines based on
cultural assimilation, the plain error standard of review applies to all of his
other arguments. See Puckett v. United States, 556 U.S. 129, 134-35 (2009);
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
As he concedes, Herrera-Mata’s argument that the presumption of
reasonableness should not apply because U.S.S.G. § 2L1.2 lacks empirical
support has been rejected by this court. See United States v. Duarte, 569 F.3d
528, 529-31 (5th Cir. 2009). His argument that his guidelines range was
greater than necessary as a result of “double counting” his criminal history is
unavailing. The Guidelines provide for consideration of a prior conviction for
both criminal history and the § 2L1.2 enhancement. See § 2L1.2, comment.
(n.6). We have rejected the argument that such double-counting necessarily
renders a sentence unreasonable. See Duarte, 569 F.3d at 529-31. We have
also previously rejected Herrera-Mata’s argument that the offense of illegal
reentry is treated too harshly under § 2L1.2. See United States v. Aguirre-
Villa, 460 F.3d 681, 683 (5th Cir. 2006); United States v. Juarez-Duarte, 513
F.3d 204, 212 (5th Cir. 2008). Herrera-Mata’s argument concerning his
cultural assimilation and his benign motive for reentry fails to rebut the
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No. 15-50299
presumption of reasonableness. See United States v. Gomez-Herrera, 523 F.3d
554, 565-66 (5th Cir. 2008); United States v. Lopez-Velasquez, 526 F.3d 804,
807 (5th Cir. 2008).
The district court considered Herrera-Mata’s personal history and
characteristics and the other statutory sentencing factors in § 3553(a), in
particular Herrera-Mata’s prior conviction for aggravated kidnapping and his
other criminal convictions, prior to imposing a sentence within the Guidelines.
Herrera-Mata’s disagreement with the district court’s weighing of the § 3553(a)
factors is insufficient to rebut the presumption of reasonableness that attaches
to a within-guidelines sentence. See Cooks, 589 F.3d at 186.
Herrera-Mata has not demonstrated that the district court abused its
discretion or plainly erred by sentencing him to a within-guidelines sentence
of 60 months. See Gall, 552 U.S. at 51; Puckett, 556 U.S. at 134-35. The
judgment of the district court is AFFIRMED.
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