     Case: 19-20529       Document: 00515381658         Page: 1     Date Filed: 04/14/2020




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

                                                                                FILED
                                     No. 19-20529                           April 14, 2020
                                   Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

DAVID HERNANDEZ JAIMES, also known as Constancio Sanchez,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:19-CR-201-1


Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       David Hernandez Jaimes, who has committed over ten immigration
violations, challenges his above Sentencing Guidelines sentence of, inter alia,
60-months’ imprisonment, imposed for his being illegally present in the United
States, in violation of 8 U.S.C. § 1326(a),(b)(1).             He asserts his sentence
represents a clear error in judgment by the district court in balancing the
sentencing factors in 18 U.S.C. § 3553(a).


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 19-20529

      Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008). No procedural error is claimed.
      Hernandez asserts his sentence fails to account for his advisory
Guidelines sentencing range of 24-to-30-months’ imprisonment. The court,
however, considered that range and “remain[ed] cognizant” of the Guidelines
in determining the sentence. See Gall, 552 U.S. at 50 n.6. The court adopted
the Guidelines calculation in the presentence investigation report and
emphasized Hernandez’ being in the highest criminal-history category, with a
point total well above the threshold for that category.
      In that regard, Hernandez contends his sentence gives undue weight to
his criminal history because: none of his prior offenses were violent; none
involved drug trafficking; only two were felonies; and one of the felonies was
nearly a decade old at sentencing. The court, however, properly relied on
Hernandez’ criminal history, including the non-trafficking drug offenses and
other “relatively mild transgressions”, and thereby did not abuse its discretion
by relying on an improper or irrelevant sentencing factor. United States v.
Smith, 440 F.3d 704, 709–10 (5th Cir. 2006).
      Hernandez also invokes Application Note 7 to Guideline § 2L1.2
(unlawfully entering or remaining in the United States) to assert his sentence



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                                  No. 19-20529

is unreasonable for failing to account for his time spent in state prison after
immigration authorities located him. Note 7, however, instructs courts to
consider a downward departure to account for such time in state custody only
if a departure “is not likely to increase the risk to the public from further crimes
of the defendant”.    U.S.S.G. § 2L1.2 cmt. n.7.       In that regard, the court
determined an upward variance was necessary in part to protect the public
from additional crimes by Hernandez.
      Nor does Hernandez show an abuse of discretion by stating his 60-month
sentence was a dramatic increase from his previous sentences for immigration
offenses or by asserting that, for reasons concerning the mothers of his children
in the United States, he has less of an incentive to return to the United States
than in the past. Such assertions amount to a disagreement with the court’s
balancing of the sentencing factors, to which we defer. See Gall, 552 U.S. at
51–52.
      Finally, Hernandez asserts his sentence is unreasonable because the
upward variance negated the effect of a two-level adjustment for acceptance of
responsibility. The court, however, followed proper sentencing procedure by
first calculating the correct advisory Guidelines sentencing range and then
making an individualized assessment regarding whether the § 3553(a) factors
supported a variance from that range. See id. at 49–50.
      AFFIRMED.




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