     Case: 13-50212      Document: 00512451411         Page: 1    Date Filed: 11/22/2013




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

                                                                                  FILED
                                    No. 13-50212                          November 22, 2013
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GEOVANNI HERNANDEZ-CARNALES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:12-CR-1032-1


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
       Geovanni Hernandez-Carnales pleaded guilty, without the benefit of a plea
agreement, to illegally reentering the country after he had been deported, and he
received a within-guidelines sentence of 46 months of imprisonment.                   He now
challenges the substantive reasonableness of that prison term, contending that it is
greater than necessary to achieve the objectives of sentencing.                 Specifically,
Hernandez-Carnales maintains, the guidelines range did not account for the fact that



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50212

he had not previously been convicted of an illegal reentry offense and that he had
only one prior nine-year-old conviction for which he served only one year in prison.
      We review the reasonableness of the sentence for abuse of discretion, Gall v.
United States, 552 U.S. 38, 51 (2007), and presume that a within-guidelines sentence,
like Hernandez-Carnales’s, is reasonable, see United States v. Brown, 727 F.3d 329,
342 (5th Cir. 2013).     Though Hernandez-Carnales urges us not to apply the
presumption of reasonableness in his case because the guideline that he was
sentenced under—U.S.S.G. § 2L1.2—lacks an empirical basis, he acknowledges that
this issue is foreclosed and raises it only to preserve it for further review. See United
States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
      Hernandez-Carnales has not rebutted the presumption that his sentence is
reasonable.   His guidelines range took into account that he had only one prior
conviction and no previous conviction for illegal reentry by assigning him to criminal
history category II. Indeed, if he had additional convictions, he would have been
placed in a higher criminal history category and his guidelines imprisonment range
would have been higher. That he served only a one-year sentence for his prior offense
also does not establish that his within-guidelines sentence was unreasonable.
Nothing required the district court to impose a lower sentence merely because
Hernandez-Carnales served a short sentence in the past. Cf. United States v. Lee,
358 F.3d 315, 328-29 (5th Cir. 2004) (upholding an upward sentencing departure in
part on the basis that the defendant had not been deterred by prior lenient sentences).
Further, the district court did not abuse its discretion by declining to impose a lighter
sentence on the basis of the age of Hernandez-Carnales’s prior conviction. See United
States v. Rodriguez, 660 F.3d 231, 234 (5th Cir. 2011) (“[T]he staleness of a prior
conviction used in the proper calculation of a guidelines-range sentence does not
render a sentence substantively unreasonable and does not destroy the presumption
of reasonableness that attaches to such sentences.”).
      The district court was well aware of the effect that Hernandez-Carnales’s prior
conviction had on the calculation of the guidelines range as well as Hernandez-
Carnales’s arguments that the nature of his criminal history warranted a below-


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                                     No. 13-50212

guidelines sentence, but it nonetheless imposed a sentence in the middle of the
guidelines range. The sentencing court is in the best position to find facts and judge
their import. United States v. Scott, 654 F.3d 552, 555 (5th Cir. 2011). In effect,
Hernandez-Carnales asks us to reweigh the sentencing factors, which we will not do.
See United States v. McElwee, 646 F.3d 328, 344-45 (5th Cir. 2011). Hernandez-
Carnales has failed to show that the district court did not consider a factor that should
have received significant weight, gave significant weight to a factor it should have
discounted, or made a clear error of judgment when it balanced the relevant factors.
See Brown, 727 F.3d at 342. He has thus failed to rebut the presumption that his
within-guidelines sentence is reasonable. See id.
      AFFIRMED.




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