     Case: 14-50279      Document: 00512906881         Page: 1    Date Filed: 01/19/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 14-50279                                FILED
                                  Summary Calendar                        January 19, 2015
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GERARDO HERNANDEZ-BARRIENTOS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:12-CR-1917


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Gerardo Hernandez-Barrientos appeals the 30-month above-guidelines
sentence imposed by the district court following his guilty plea conviction for
illegal reentry into the United States after deportation. He argues that the
sentence is substantively unreasonable and greater than necessary to achieve
the sentencing goals of 18 U.S.C. § 3553(a). He contends that the district court
did not adequately consider the sentencing factors or his personal history and


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50279     Document: 00512906881       Page: 2   Date Filed: 01/19/2015


                                   No. 14-50279

characteristics and gave disproportionate weight to his prior misdemeanor
convictions. He maintains that U.S.S.G. § 2L1.2 essentially double counted his
prior convictions and that his illegal reentry offense was merely an
international trespass.
      Because Hernandez-Barrientos did not object to the substantive
reasonableness of his sentence in the district court, review is limited to plain
error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). To
show plain error, he must show that the error was clear or obvious and affected
his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009).
If he makes such a showing, this court has the discretion to correct the error
but only if it “‘seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.’” Id. (alteration in original) (quoting United States v.
Olano, 507 U.S. 725, 736 (1993)).
      After considering the Presentence Report, the circumstances of the case,
the parties’ arguments and the § 3553(a) sentencing factors, the district court
determined that a within-guidelines sentence would be inadequate to achieve
the sentencing goals of § 3553(a) in view of Hernandez-Barrientos’s history and
characteristics and prior criminal convictions. The district court noted that six
of his prior convictions were not counted in calculating his criminal history
category. According to the district court, the Guidelines did not take into
account the seriousness of Hernandez-Barrientos’s prior assault conviction in
which he stabbed his wife with a knife. The district court found that this
assault conviction was analogous to an aggravated felony or a crime of violence.
      The sentence imposed by the district court was not substantively
unreasonable. There is no indication that the district court failed to consider
a factor that should have received significant weight, gave significant weight
to an irrelevant or improper factor, or made a clear error in balancing the



                                         2
    Case: 14-50279    Document: 00512906881     Page: 3   Date Filed: 01/19/2015


                                 No. 14-50279

§ 3553(a) factors. See Peltier, 505 F.3d at 392. We have consistently rejected
the argument that § 2L1.2 improperly double counts a defendant’s prior
criminal convictions. United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.
2009). We have also rejected the argument that the Guidelines overstate the
seriousness of the illegal reentry offense because it is simply an international
trespass. United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006);
United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008). Further, we
have upheld similar or more substantial variations than the 14-month
variation at issue in this case. See, e.g., United States v. Key, 599 F.3d 469,
475-76 (5th Cir. 2010) (affirming a sentence of 216 months where the
guidelines range was 46 to 57 months); United States v. Lopez-Velasquez, 526
F.3d 804, 805, 807 (5th Cir. 2008) (affirming a 72-month sentence for illegal
reentry offense when the guidelines range was 24 to 30 months); United States
v. Jones, 444 F.3d 430, 433, 441-42 (5th Cir. 2006) (affirming an upward
variance or departure to 120 months from a guidelines range of 46 to 57
months).
      Hernandez-Barrientos has not shown that the sentence is substantively
unreasonable based on his disagreement with the district court’s balancing of
the § 3553(a) sentencing factors. See Gall v. United States, 552 U.S. 38, 50-53
(2007); United States v. Brantley, 537 F.3d 347, 349-50 (5th Cir. 2008). For
these reasons, Hernandez-Barrientos has not demonstrated that the district
court plainly erred in imposing the 30-month sentence.
      AFFIRMED.




                                       3
