United States v. Jorge Hernandez , 431 F. App'x 870 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15446 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 22, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cr-00436-WSD-LTW-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
JORGE HERNANDEZ,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(June 22, 2011)
Before TJOFLAT, CARNES and BLACK, Circuit Judges.
PER CURIAM:
Jorge Hernandez appeals his 77-month sentence, imposed at the low end of
his Guidelines range, after pleading guilty to one count of reentry of a deported
alien, in violation of 8 U.S.C. § 1326(a), (b)(2). Hernandez brings two issues on
appeal, which we address in turn. After review, we affirm Hernandez’s sentence.
I.
Hernandez asserts the district court’s imposition of a 77-month term of
imprisonment was substantively unreasonable as the Guidelines range resulted
from redundant consideration of his criminal history and did not adequately take
into account the factors set forth in 18 U.S.C. § 3553(a). Within this argument, for
the first time on appeal, Hernandez contends his 16-level enhancement under
U.S.S.G. § 2L1.2(b)(1)(A)(ii) for a previous crime of violence was unreasonable,
because it was not based on empirical data and penalizes a defendant twice for the
same prior conviction also included in the criminal history calculation.
We review the reasonableness of a sentence, “[r]egardless of whether the
sentence imposed is inside or outside the Guidelines range,” under a deferential
abuse of discretion standard of review. Gall v. United States, 552 U.S. 38, 51
(2007). We reverse only if “left with the definite and firm conviction that the
district court committed a clear error of judgment in weighing the § 3553(a)
factors by arriving at a sentence that lies outside the range of reasonable sentences
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dictated by the facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th
Cir. 2010) (en banc), cert. denied, 131 S. Ct. 1813 (2011) (quotations omitted).
“The weight to be accorded any given § 3553(a) factor is a matter
committed to the sound discretion of the district court.” United States v. Williams,
526 F.3d 1312, 1322 (11th Cir. 2008) (alteration omitted). A sentence may be
substantively unreasonable where a district court “unjustifiably relied on any one
§ 3553(a) factor, failed to consider pertinent § 3553(a) factors, selected the
sentence arbitrarily, or based the sentence on impermissible factors.” United
States v. Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009). The burden of
establishing that a sentence is unreasonable lies with the party challenging the
sentence. United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008).
Hernandez’s 77-month sentence, located at the low end of his advisory
guideline range, is substantively reasonable. The district court did not abuse its
discretion in considering Hernandez’s escalating criminal history in determining a
reasonable sentence, and the court also took into account the § 3553(a) factors,
including Hernandez’s history and characteristics, the nature of the offense, the
fact that Hernandez needed to be held accountable for his conduct, the need to
protect the community, and the possibility of Hernandez receiving training while
in prison. Particularly, the district court explicitly considered Hernandez’s
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arguments regarding his youth and assimilation into the culture of the United
States in determining Hernandez’s sentence.
Hernandez failed to raise until this appeal his policy argument that the 16-
level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) was unreasonable, and
thus he has waived all but plain-error review. See United States v. Bennett, 472
F.3d 825, 831 (11th Cir. 2006) (explaining objections to a sentence raised for the
first time on appeal are reviewed for plain error). Hernandez cites no binding
precedent from the Supreme Court or this Court to support his argument, nor does
such precedent exist, and therefore the district court did not plainly err in
assigning the 16-level enhancement for Hernandez’s previous crime of violence.
See United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003) (stating
there can be no plain error where neither the Supreme Court nor this Court has
directly resolved the issue).
II.
Although acknowledging this Court’s precedent is contrary to his argument,
Hernandez also contends the district court erred by assigning two criminal history
points for a juvenile conviction for obstruction, because the court improperly
applied U.S.S.G. § 4A1.2(k)(1) to determine that his probation revocation
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sentence of two years’ imprisonment prevented that offense from being exempt
from application of criminal history points under U.S.S.G. § 4A1.2(c)(1).
We have held the district court should apply § 4A1.2(k)(1) when
determining whether an offense should be excluded pursuant to § 4A1.2(c)(1)(A).
United States v. Coast, 602 F.3d 1222, 1223-24 (11th Cir. 2010). Thus, the
district court did not err in applying U.S.S.G. § 4A1.2(k)(1) to determine
Hernandez should receive two criminal history points for his June 2004
adjudication, based upon his two-year sentence of imprisonment for a probation
revocation. Hernandez concedes Coast forecloses his argument and supports that
a district court should aggregate a defendant’s original sentence and probation
revocation sentence to determine whether a conviction is exempt from the
application of criminal history points pursuant to U.S.S.G. §§ 4A1.2(c)(1) and
4A1.2(k).
AFFIRMED.
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