United States v. Henriquez-Villafuerte , 353 F. App'x 948 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 30, 2009
No. 09-50092
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CARLOS ALBERTO HENRIQUEZ-VILLAFUERTE, also known as Oscar
Polanco-Salas, also known as Victor Manuel Ortiz
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-2762-ALL
Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Carlos Alberto Henriquez-Villafuerte (Henriquez) was convicted of
reentering the United States illegally following deportation and has appealed his
sentence. Henriquez contends that the non-guidelines sentence imposed by the
district court was unreasonable. Because Henriquez did not object in the district
court to the reasonableness of the sentence, our review is for plain error. See
United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008). In reviewing the
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 09-50092
reasonableness of the sentence we consider the totality of the circumstances and
the extent of the district court’s variance from the guidelines range. Id. We give
“considerable deference” to the district court’s determination of the appropriate
sentence based on the 18 U.S.C. § 3553(a) factors. See United States v. Williams,
517 F.3d 801, 812 (5th Cir. 2008).
Henriquez argues that it was improper for the district court to make
assumptions about the reasons for the imposition of the sentence related to a
prior illegal-reentry conviction. Henriquez speculates that the 70-month
sentence in that case may have been “improperly calculated” and that the record
did not establish that the more lenient guidelines sentence in the instant case
resulted from a change in the law, as the district court supposed. Henriquez
argues that the guidelines sentence accounted adequately for the statutory
sentencing factors.
The district court’s express reasons for imposing the 60-month term of
imprisonment in this case reflect that it considered the seriousness of the
offense, Henriquez’s lack of respect for the law, and the need to provide just
punishment for the offense and to deter and protect the public from future
criminal conduct. See § 3553(a). Henriquez has not shown that the district court
committed plain error in imposing the sentence. See Brantley, 537 F.3d at 350.
Henriquez contends also that, in light of Apprendi v. New Jersey, 530 U.S.
466 (2000), the sentencing enhancement of 8 U.S.C. § 1326(b) is
unconstitutional. Henriquez acknowledges that this issue is foreclosed by
Alemendarez-Torres v. United States, 523 U.S. 224, 235 (1998); he has raised the
issue to preserve it for further review. See United States v. Fambro, 526 F.3d
836, 851 & n.96 (5th Cir.), cert. denied, 129 S. Ct. 625 (2008); United States v.
Pineda-Arrellano, 492 F.3d 624, 626 (5th Cir. 2007). The judgment is
AFFIRMED.
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