United States v. Teresa Perez-Hernandez , 614 F. App'x 787 ( 2015 )

Case: 15-40053 Document: 00513174985 Page: 1 Date Filed: 08/31/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-40053 FILED
Summary Calendar August 31, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TERESA PEREZ-HERNANDEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:14-CR-764
Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Teresa Perez-Hernandez (Perez) appeals her 46-month sentence of
imprisonment imposed following her guilty plea conviction for being found
unlawfully present in the United States following deportation after her
conviction for an aggravated felony. She argues that the district court erred in
denying her motion for a downward departure based on an overrepresentation
of the seriousness of her criminal history. The record does not reflect that the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40053
district court acted under a mistaken belief that it lacked the discretion to
depart downward. Therefore, this court lacks jurisdiction to review the district
court’s denial of Perez’s motion for a downward departure. See United States
v. Rodriguez-Montelongo, 263 F.3d 429, 431 (5th Cir. 2001).
Perez challenges the reasonableness of her sentence. However, she did
not specifically object to the sentence as being substantively unreasonable,
and, thus, this argument may be subject to plain error review. See Puckett v.
United States, 556 U.S. 129, 135 (2009). Nevertheless, the reasonableness of
Perez’s sentence may be affirmed under either an abuse of discretion or a plain
error standard of review. See United States v. Rodriguez, 523 F.3d 519, 525
(5th Cir. 2008).
Perez argues that in its analysis of the 18 U.S.C. § 3553(a) factors, the
district court should have considered the lack of empirical studies to support
the application of U.S.S.G. § 2L1.2. This court has rejected such an argument.
See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008);
United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009).
Further, Perez argues that the district court erred in denying her motion
for a downward variance and imposed an unreasonable sentence because it
failed to consider her youth at the time of her prior drug-trafficking conviction
or her benign motives for illegally returning to the United States. The district
court considered the parties’ arguments and made an individualized
assessment of all the relevant § 3553(a) factors. See Gall v. United States, 552
U.S. 38, 49-50 (2007). Perez’s self-serving assertions of mitigating
circumstances were insufficient to rebut the presumption of reasonableness
afforded to her bottom-of-the-guidelines sentence. See United States v. Gomez-
Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Perez failed to show that her
47-month sentence constituted clear or obvious error or was substantively
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No. 15-40053
unreasonable. See Puckett, 556 U.S. at 135; Campos-Maldonado, 531 F.3d at
338. Additionally, the sentence was reasonable based on the totality of the
circumstances and, therefore, the district court did not err in denying the
downward variance. See United States v. Brantley, 537 F.3d 347, 349-50 (5th
Cir. 2008).
The sentence is AFFIRMED.
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