U.S.v.Hernandez-Morales

United States Court of Appeals, Fifth CircuitNov 17, 2009
354 Fed. Appx. 123 (5th Cir. 2009)

No. 09-50153 Summary Calendar.

November 17, 2009.

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, San Antonio, TX, for Plaintiff-Appellee.

Philip J. Lynch, Henry Joseph Bemporad, Federal Public Defender's Office, San Antonio, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas, USDC No. 3:08-CR-2342-1.

Before KING, STEWART, and HAYNES, Circuit Judges.


David Hernandez-Morales (Hernandez) appeals the 63-month sentence imposed by the district court following his conviction for illegal reentry into the United States after having been deported. Hernandez argues that his sentence was unreasonable because it was greater than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a).

When the district court imposes a sentence within a properly calculated guidelines range and gives proper weight to the Guidelines and the § 3553(a) factors, this court gives "great deference to that sentence and will infer that the judge has considered all the factors for a fair sentence set forth in the Guidelines in light of the sentencing considerations set out in § 3553(a)." United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.) (internal quotation marks and citation omitted), cert denied, ___ U.S. ___, 129 S.Ct. 328, 172 L.Ed.2d 236 (2008). "A discretionary sentence imposed within a properly calculated guidelines range is presumptively reasonable." Id.

The Guidelines expressly permit the district court to consider a defendant's prior conviction for an increase in offense level under U.S.S.G. § 2L1.2 and for calculating criminal history. See § 2L1.2, comment. (n. 6). Further, this court has rejected the argument that a presumption of reasonableness should not be afforded a guideline range resulting from application of § 2L1.2 because such application amounts to impermissible doable counting. United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir.), cert. denied, ___ U.S. ___, 130 S.Ct. 378, 175 L.Ed.2d 231 (2009).

Hernandez has not shown that the sentence imposed by the district court was substantively unreasonable. Although his offense was not necessarily a crime of violence, Hernandez has shown a disrespect for the law. Further, as noted by the district court, Hernandez had other options for dealing with the problem of his alleged enemies in Mexico rather than illegally returning to the United States. AFFIRMED.