     Case: 10-50518 Document: 00511388486 Page: 1 Date Filed: 02/21/2011




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

                                                 FILED
                                                                          February 21, 2011
                                     No. 10-50518
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

NESTOR HERNANDEZ-HERNANDEZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 3:10-CR-459-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Nestor Hernandez-Hernandez appeals the sentence imposed following his
guilty plea conviction for illegal reentry into the United States. He contends
that the sentence is greater than necessary to achieve the sentencing goals of 18
U.S.C. § 3553(a); that U.S.S.G. § 2L1.2 is not empirically based, overstates the
seriousness of his offense, and results in unjust double counting; and that the
Guidelines failed to take into account his personal circumstances, including his
motive of returning to his family. Hernandez-Hernandez asserts that the offense

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50518 Document: 00511388486 Page: 2 Date Filed: 02/21/2011

                                   No. 10-50518

of illegal reentry is not a crime of violence, did not pose a danger to others, is not
evil in itself, and is “at bottom, an international trespass.”
      Hernandez-Hernandez has not shown that the district court abused its
discretion in imposing his 71-month sentence. This court has previously rejected
the argument that a sentence under § 2L1.2 is unreasonable because § 2L1.2 is
not empirically based and results in unjust double counting. United States v.
Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009). This
court has also rejected the argument that a guidelines sentence for illegal
reentry is unreasonable because it is a mere trespass offense. See United States
v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). The district court considered
Hernandez-Hernandez’s arguments for a lesser sentence, as well as the § 3553(a)
goals of promoting respect for the law, deterring criminal conduct, and
protecting the public from further crimes of the defendant. The district court
ultimately refused to sentence him below the advisory guidelines range due to
his criminal history.    Hernandez-Hernandez’s mere disagreement with the
sentence does not suffice to rebut the presumption of reasonableness that
attaches to a sentence within the advisory guidelines range. Cf. United States
v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
      AFFIRMED.




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