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

                                                  FILED
                                                                            March 4, 2009

                                       No. 08-50525                    Charles R. Fulbruge III
                                     Summary Calendar                          Clerk



UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

ADRIAN HERNANDEZ-GARAY

                                                   Defendant - Appellant




                     Appeal from the United States District Court
                          for the Western District of Texas
                                  No. 3:07-CR-3201


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Andrian Hernandez-Garay appeals his 70-month sentence received
following his guilty plea to illegal reentry.1 The presentence report included a
16-level increase over the base offense level of 8 based on the fact that
Hernandez was previously convicted of an alien smuggling offense.2                      With


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
       1
           8 U.S.C. § 1326.
       2
           See U.S.S.G. § 2L1.2(b)(1)(A).
                                      No. 08-50525

Hernandez’s criminal history category of V, this offense level produced a
guidelines range of 70 to 87 months. Hernandez argued for a below-guidelines
sentence. The district court considered his situation and sentenced him to 70
months. We review for abuse of discretion.3
       Hernandez first argues that the sentencing guidelines for illegal reentry
are not supported by empirical data and national experience and therefore the
presumption of reasonableness which we ordinarily apply to within-guideline
sentences should not apply. While we agree that a sixteen-level enhancement
for a prior alien smuggling offense is harsh, we have twice rejected challenges
that sentences that result from the application of the enhancement should not,
on appeal, be given a presumption of reasonableness.4 We therefore apply the
appellate presumption of reasonableness.
       The district court heard Hernandez’s argument for a below-guideline
sentence, including Hernandez’s family ties in the United States, his attempts
at working in Mexico, and his son’s medical condition in the United States.
Hernandez also stated his family’s intentions to “leave this country as soon as
possible.” The district court, however, was concerned by Hernandez’s multiple
previous illegal entry charges. On this basis, the court sentenced him to the low
range recommended by the guidelines. We cannot find that this was an abuse
of discretion. Hernandez’s sentence is AFFIRMED.




       3
         U.S. v. Gomez-Herrera, 523 F.3d 554, 564 (5th Cir. 2008). The Government argues
that Hernandez’s first contention—that the sentencing guideline at issue is not supported by
empirical data—was not specifically raised in the district court, thus limiting our review to
plain error. We need not decide the appropriate level of review because our case law has
rejected Hernandez’s argument under both abuse of discretion and plain error standards.
       4
         U.S. v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008); Gomez-Herrera, 523
F.3d at 565–66.

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