     Case: 11-50479     Document: 00511780129         Page: 1     Date Filed: 03/07/2012




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

                                                                            FILED
                                                                           March 7, 2012
                                     No. 11-50479
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ROBERTO HERNANDEZ-HERNANDEZ, also known as Roberto Hernandez,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:11-CR-65-1


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Roberto Hernandez-Hernandez (Hernandez) argues that the 46-month
within-guidelines sentence imposed by the district court following his guilty plea
conviction for illegal reentry into the United States was unreasonable; that the
Guidelines failed to account for his difficult childhood, his substance abuse
problems, his cultural assimilation, and his family circumstances; and that the
district court erred in refusing his request for a downward variance.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-50479        Document: 00511780129         Page: 2    Date Filed: 03/07/2012

                                        No. 11-50479

      This Court engages in a bifurcated analysis of the sentence imposed by the
district court.1 This Court first examines whether the district court committed
any significant procedural errors.2 If the district court’s decision is procedurally
sound, as here, this Court will then consider the substantive reasonableness of
the sentence, considering the factors in 18 U.S.C. § 3553(a).3 In evaluating a
sentence for substantive reasonableness, this Court applies an abuse of
discretion standard of review.4 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).”5        “A discretionary sentence imposed within a properly
calculated guidelines range is presumptively reasonable.”6 “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.”7
      Hernandez has not shown that the sentence imposed by the district court
was substantively unreasonable. The 46-month within-guidelines sentence is




      1
          Gall v. United States, 552 U.S. 38, 51 (2007).
      2
          Id.
      3
          Id.
      4
          United States v. Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir. 2009).
      5
        United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008) (quoting
United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005)).
      6
          Id.
      7
          United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).

                                               2
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                                         No. 11-50479

entitled to a presumption of reasonableness.8 The record indicates that the
district court considered the information in the Presentence Report concerning
Hernandez’s difficult childhood, his substance abuse problems, cultural
assimilation, and family circumstances, as well as his counsel’s arguments at the
sentencing hearing. Although cultural assimilation can be a mitigating factor,
nothing requires the district court to give it ?dispositive weight.”9 His reasons
for reentering the United States are insufficient to rebut the presumption of
reasonableness.10 Hernandez has not shown that the district court abused its
discretion in imposing a sentence within the advisory guidelines range or in not
according more weight to his difficult childhood, his substance abuse problems,
cultural assimilation, and family circumstances.11
       Hernandez also asserts that the appellate presumption of reasonableness
should not apply to his sentence because the illegal reentry Guideline, U.S.S.G.
§ 2L1.2, is not empirically based. He correctly acknowledges that this argument
is foreclosed by this Court’s precedent and states that he is raising it to preserve
it for possible further review.12
       AFFIRMED.




       8
           See Campos-Maldonado, 531 F.3d at 338.
       9
           See United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2009).
       10
          See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008) (upholding
a within-guidelines sentence when the appellant had requested a downward variance based
on his cultural assimilation and the fact that he returned to the United States to visit his
ailing father); see also United States v. Caraza-Valdez, 371 F. App’x 552, 553 (5th Cir. 2010)
(unpublished) (per curiam) (affirming a within-guidelines sentence when the appellant argued
that he moved to the United States as a young child and returned to reunite with his family),
cert. denied, 131 S. Ct. 993 (2011).
       11
            See Gall, 552 U.S. at 49-51; Lopez-Velasquez, 526 F.3d at 807.
       12
       See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).

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