     Case: 15-51228      Document: 00513704029         Page: 1    Date Filed: 10/04/2016




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

                                    No. 15-51228                                     FILED
                                  Summary Calendar                             October 4, 2016
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE RAMON HERNANDEZ-SANCHEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2-14-CR-1540-1


Before DAVIS, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM: *
       Jose Ramon Hernandez-Sanchez pleaded guilty of entering the United
States illegally following removal, and he was sentenced at the bottom of the
guidelines range to a 37-month term of imprisonment and to a three-year
period of supervised release. Hernandez-Sanchez contends that the sentence
is substantively unreasonable because it is greater than necessary to effectuate
the statutory sentencing goals in that it overstates the seriousness of his


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-51228    Document: 00513704029     Page: 2     Date Filed: 10/04/2016


                                 No. 15-51228

offense and criminal history. Hernandez asserts that the Guidelines failed to
account adequately for his personal history and characteristics and the fact
that he had benign reasons for returning to this country.
      After United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for procedural error and substantive reasonableness under an abuse
of discretion standard. United States v. Johnson, 619 F.3d 469, 471-72 (5th
Cir. 2010) (citing Gall v. United States, 552 U.S. 38, 50-51 (2007)). This court
presumes that a sentence within the advisory guidelines range is reasonable.
United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). To rebut the
presumption of reasonableness, a defendant must show that “the sentence does
not account for a [sentencing] 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.” United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      Hernandez’s offense level was increased by 16 levels because he was
convicted in 2007 of transportation of illegal aliens. Hernandez complains that
the consideration of his prior conviction in determining his offense level double
counted that conviction, as it was also considered in determining his criminal
history score. Similar arguments have been repeatedly rejected by this court.
See United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir. 2009). Hernandez
contends also that this court should not apply a presumption of reasonableness
because the Guidelines lack an empirical basis and because of the “problematic
manner in which the Sentencing Commission established the offense levels for
illegal reentry.” He concedes that this argument is foreclosed, and he raises
the issue to preserve it for further review. See United States v. Mondragon-
Santiago, 564 F.3d 357 (5th Cir. 2009).




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                                  No. 15-51228

      The record reflects that the district court considered Hernandez’s
contentions and the sentencing factors in determining that a within-guidelines
sentence was appropriate. Hernandez has not shown that the district court
gave significant weight to an irrelevant or improper factor or that the sentence
represents a clear error in balancing the sentencing factors. See United States
v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). We will defer to the district court’s
determination. See United States v. Brantley, 537 F.3d 347, 349 (5th Cir.
2008). The judgment is AFFIRMED.




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