     Case: 10-20594     Document: 00511527848         Page: 1     Date Filed: 07/01/2011




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

                                                                            FILED
                                                                            July 1, 2011
                                     No. 10-20594
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE MANUEL HINOJOSA SAENZ, also known as Jose Manuel Hinojosa, also
known as Jesus Prado, also known as Rosbel Pena Hinojosa, also known as
Armomndo Garcia Saenz, also known as Jose Hinojosa,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-170-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Jose Manuel Hinojosa Saenz (Saenz) pleaded guilty to a single count of
illegal presence in the United States after deportation following an aggravated
felony conviction. Based on a 1987 conviction for possession with intent to
distribute marijuana, Saenz received an enhancement of 16 offense levels; as a
result, the applicable guidelines sentencing range was 57 to 71 months of


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-20594

imprisonment. Saenz ultimately was sentenced to 70 months of imprisonment.
On appeal, Saenz argues that both the 16-level enhancement and his 70-month
sentence were substantively unreasonable.
      We review a sentence for reasonableness in light of the sentencing factors
in 18 U.S.C. § 3553(a). See United States v. Mares, 402 F.3d 511, 519-20 (5th
Cir. 2005). We consider “the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51
(2007).     “[A] sentence within a properly calculated Guideline range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006); Rita v. United States, 551 U.S. 338, 347 (2007). “The presumption is
rebutted only upon a showing that the sentence does not account for a 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),
cert. denied 130 S. Ct. 1930 (2010).
      Saenz first argues that the imposition of the 16-level enhancement based
on his 1987 conviction was unreasonable because he has not committed similar
or serious crimes since that conviction. However, considering Saenz’s multiple
criminal convictions since 1987, including one for marijuana possession in 2001
for which he received a five-year sentence, we conclude that the district court did
not abuse its discretion by imposing the 16-level enhancement and the 70-month
sentence.
      To the extent Saenz argues that the U. S. Sentencing Commission has not
sufficiently justified the 16-level enhancement, we have rejected similar
arguments and continue to apply the appellate presumption of reasonableness
to within guidelines sentences, even when the particular Guideline lacks an
empirical basis. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.),
cert. denied, 130 S. Ct. 378 (2009). We also have rejected arguments that the
lack of a “fast-track” program in a particular district produces unwarranted

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                                  No. 10-20594

sentencing disparities. See United States v. Gomez-Herrera, 523 F.3d 554, 563
& n.4 (5th Cir. 2008).
      Saenz argues that the 16-level enhancement creates sentencing disparities
and results in an equal protection issue.        Saenz has not shown that the
enhancement creates unwarranted sentencing disparities, especially given that
he received a within-guidelines sentence. See United States v. Willingham, 497
F.3d 541, 545 (5th Cir. 2007). Likewise, imposition of the enhancement does not
raise equal protection concerns because it applies to all persons with prior drug
trafficking convictions who have illegally reentered the United States. See
United States v. Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th Cir. 1993).
      Saenz argues that, as a result of the 16-level enhancement, his sentence
is grossly disproportionate to the crime he committed and that the sentence
constitutes cruel and unusual punishment.          When evaluating an Eighth
Amendment challenge, this court makes a threshold comparison between the
gravity of the charged offense and the severity of the sentence. McGruder v.
Puckett, 954 F.2d 313, 316 (5th Cir. 1992). Only if the sentence is grossly
disproportionate to the offense do we compare the sentence at issue with (1)
sentences imposed for other crimes in the same jurisdiction and (2) sentences
imposed for the same crime in other jurisdictions. Id. We conclude that Saenz
has not demonstrated that his 70-month sentence is grossly disproportionate to
his offense or that it rises to the level of cruel and unusual punishment. See
Cardenas-Alvarez, 987 F.2d at 1134.
      Finally, Saenz argues that the district court failed to consider all of the
§ 3553(a) factors when imposing sentence. The district court’s statements at
sentencing indicate that it considered various § 3553(a) factors, including the
nature and circumstances of the offense, the history and characteristics of the
defendant, the need for the sentence to promote respect for the law, and the need
to afford adequate deterrence. See § 3553(a)(1), (a)(2)(A)-(B). The district court
was not required to “engage in robotic incantations that each statutory factor

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                                No. 10-20594

has been considered.” United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006)
(internal quotation marks and citation omitted).
      For the reasons discussed above, we conclude that Saenz has failed to
rebut the presumption that his within-guidelines sentence of 70 months was
substantively reasonable. See Alonzo, 435 F.3d at 554. Therefore, his sentence
is AFFIRMED.




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