     Case: 14-50109      Document: 00512845230         Page: 1    Date Filed: 11/21/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-50109
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        November 21, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

MARVIN JOSUE HERNANDEZ-LOPEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:13-CR-813-1


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Marvin Josue Hernandez-Lopez challenges the within-guidelines
sentence imposed following his guilty plea conviction for illegal reentry
following previous deportation. He argues that his sentence is substantively
unreasonable because he was entitled to a downward departure based on
cultural assimilation. He also argues that he was entitled to a downward




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50109    Document: 00512845230     Page: 2   Date Filed: 11/21/2014


                                 No. 14-50109

departure, pursuant to U.S.S.G. § 5K2.0 and U.S.S.G. § 5H1.3, based on “the
immense psychological and mental hardship he has suffered in prison.”
      To the extent that Hernandez-Lopez is challenging the district court’s
refusal to downwardly depart from the recommended guidelines range, we do
not have jurisdiction to review that decision. See United States v. Barrera-
Saucedo, 385 F.3d 533, 535 (5th Cir. 2004). To the extent that he is challenging
the denial of his request for downward variance, the record reflects that the
district court considered Hernandez-Lopez’s arguments for a below-guidelines
sentence, including his cultural assimilation argument. The district court,
however, determined that “out of an abundance of mercy” it would sentence
Hernandez-Lopez to 41 months, despite the record “justify[ing] something
more than just the guidelines.” Hernandez-Lopez has failed to show that the
district court failed to give proper weight to his arguments or any particular
§ 3553(a) factor. See United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th
Cir. 2009).    Hernandez-Lopez has failed to rebut the presumption of
reasonableness that is accorded his within-guidelines sentence. See United
States v. Gomez-Herrera, 523 F.3d 554, 565-66 (2008). Thus, he has failed to
show that his sentence is substantively unreasonable. See Gall v. United
States, 552 U.S. 38, 49-51 (2007).
      AFFIRMED.




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