     Case: 11-50421     Document: 00511740487         Page: 1     Date Filed: 01/30/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         January 30, 2012
                                     No. 11-50421
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GABRIEL IBRAHIM HERNANDEZ-RUBIO, also known as Gabriel Ibrahim
Hernandez, also known as Gabriel Hernandez,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:10-CR-3094-1


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Gabriel Ibrahim Hernandez-Rubio (Hernandez) appeals the sentence of
two concurrent terms of 51 months of imprisonment, which was imposed
following his guilty-plea conviction to illegal reentry and improper use of
another’s passport, in violation of 8 U.S.C. § 1326 and 18 U.S.C. § 1544.
According to Hernandez, his guidelines-range sentence is unreasonable because
it is greater than necessary to meet the goals of 18 U.S.C. § 3553(a). He


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50421

contends that the Guidelines that govern illegal reentry offenses produce
unreasonable sentences because they are not empirically based and result in
double-counting of his criminal history. In addition, the Guidelines fail to
account for the benign nature of his offense, which he characterizes as an
incomplete international trespass, and fail to consider his personal
circumstances or his motive for returning to the United States, which was to
earn money.     Finally, he argues that the Guidelines create unwarranted
sentencing disparity by failing to account for the lack of fast-track programs in
certain districts.
      Hernandez’s challenge to the substantive reasonableness of his sentence
is reviewed under the abuse of discretion standard. See Gall v. United States,
552 U.S. 38, 50-51 (2007); United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008). Hernandez’s 51-month sentence was within the guidelines range
of 46 to 57 months of imprisonment and therefore is presumed to be reasonable.
See United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009).
      We have rejected the argument that the presumption of reasonableness
does not apply because the Guidelines that govern illegal reentry offenses are
not empirically based. See id. at 366-67. Also, we have rejected the argument
that a sentence is rendered unreasonable because application of the Guidelines
results in double-counting of a prior criminal conviction. See United States v.
Duarte, 569 F.3d 528, 529-31 & n.2 (5th Cir. 2009). Hernandez’s arguments that
his crime was an incomplete international trespass and that his motive for
reentering the country was benign, do not rebut the appellate presumption of
reasonableness. See United States v. Gomez-Herrera, 523 F.3d 554, 556-65 (5th
Cir. 2008); United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
Also, the unavailability of fast-track programs does not render Hernandez’s
guidelines-range sentence unreasonable. See Gomez-Herrera, 523 F.3d at 565-
66. Finally, in Hernandez’s case, the district court’s sentencing decision was
based upon an individualized assessment of the facts, including Hernandez’s

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                                 No. 11-50421

background, personal characteristics, and his arguments for leniency, and the
sentencing determination was made after consideration of the § 3553(a) factors.
See Gall, 552 U.S. at 49-51.
      Thus, Hernandez has not demonstrated that his sentence fails to take into
account a factor that should receive significant weight, gives significant weight
to an irrelevant or improper factor, or represents a clear error of judgment in
balancing the sentencing factors. United States v. Cooks, 589 F.3d 173, 186 (5th
Cir. 2009). He has therefore failed to rebut the presumption of reasonableness
that attaches to his within-guidelines sentence. See id.
      The district court’s judgment is AFFIRMED. The Government’s motion
for summary affirmance is DENIED. See United States v. Holy Land Found. for
Relief & Dev., 445 F.3d 771, 781 (5th Cir. 2006). However, because Hernandez
has not rebutted the presumption of reasonableness that attaches to his below-
guidelines sentence, further briefing is unnecessary.          Accordingly, the
Government’s alternative request for an extension of time to file a brief is
DENIED.




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