     Case: 19-10993      Document: 00515489113         Page: 1    Date Filed: 07/14/2020




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

                                                                                FILED
                                    No. 19-10993                            July 14, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE ANGEL HERNANDEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:19-CR-39-1


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Jose Angel Hernandez pleaded guilty to one count of possession of a
firearm by a felon. He now appeals his conviction and his 96 month, above-
guidelines sentence.
       First, Hernandez argues that his sentence is substantively unreasonable
because it is greater than necessary to achieve the sentencing goals set forth
in 18 U.S.C. § 3553(a). This court reviews the substantive reasonableness of 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-10993

sentence under the abuse of discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007). A non-guidelines sentence is substantively unreasonable if
it fails to reflect the § 3553(a) sentencing factors in that it: “(1) does not account
for a factor that should have received significant weight, (2) gives significant
weight to an irrelevant or improper factor, or (3) represents a clear error of
judgment in balancing the sentencing factors.” United States v. Smith, 440
F.3d 704, 708 (5th Cir. 2006).
      Hernandez asserts that the district court failed to consider the
mitigating factors presented at sentencing. Despite Hernandez’s assertion to
the contrary, the district court specifically stated that it considered defense
counsel’s “compelling argument,” which was devoted entirely to mitigating
factors. The district court considered Hernandez’s mitigating arguments but
found them to be outweighed by the aggravating facts of the offense and his
criminal history. There is no requirement that the district court must accord
a mitigating factor dispositive weight. United States v. Lopez-Velasquez, 526
F.3d 804, 807 (5th Cir. 2008). Thus, Hernandez has not shown that the district
court failed to consider a factor that should have been given significant weight.
See Smith, 440 F.3d at 708.
      In addition, Hernandez contends that the district court gave
“unwarranted weight to at least two factors that were already considered” in
the guidelines calculation, namely, his pointing of a gun at another person and
his criminal history. This, he states, represents a clear error of judgment in
balancing the sentencing factors.        However, the district court may give
additional weight to factors included in calculating the applicable advisory
guidelines range. Lopez-Velasquez, 526 F.3d at 807. This includes criminal
history. See Smith, 440 F.3d at 709. Thus, Hernandez has not shown that the




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                                 No. 19-10993

district court made a clear error of judgment in balancing the sentencing
factors. See Smith, 440 F.3d at 708.
      Hernandez further argues that his conviction for violation of 18 U.S.C.
§ 922(g) is unconstitutional facially and as applied to him and that there is an
insufficient factual basis as to his knowledge of the interstate commerce
element. Hernandez’s argument that past movement of a firearm in interstate
commerce is insufficient is foreclosed by United States v. Daugherty, 264 F.3d
513, 518 (5th Cir. 2001); United States v. Rawls, 85 F.3d 240, 242-43 (5th Cir.
1996). His argument challenging the constitutionality of § 922(g) as exceeding
the Commerce Clause is foreclosed by United States v. Alcantar, 733 F.3d 143,
145-46 (5th Cir. 2013). His mens rea argument is foreclosed by United States
v. Rose, 587 F.3d 695, 705-06 (5th Cir. 2009); United States v. Dancy, 861 F.2d
77, 80-82 (5th Cir. 1988); Rehaif v. United States, 139 S. Ct. 2191, 2194, 2196
(2019).
      Accordingly, the judgment is AFFIRMED.




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