United States v. De La Rosa-Mascorro , 223 F. App'x 324 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 14, 2007
Charles R. Fulbruge III
Clerk
No. 06-40436
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
HECTOR MARIO DE LA ROSA-MASCORRO
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-189-ALL
--------------------
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Hector Mario De La Rosa-Mascorro (De La Rosa) appeals the
57-month sentence imposed on remand following his conviction for
attempted illegal reentry into the United States after
deportation. Resentencing was ordered in light of the decision
in United States v. Booker, 543 U.S. 220 (2005).
De La Rosa’s sentence was within a properly calculated
advisory guideline range. De La Rosa argues that his sentence
was unreasonable because the district court improperly assessed
and balanced the sentencing factors set forth in 18 U.S.C. §
*
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this opinion should not be published and is not precedent except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.
No. 06-40436
-2-
3553(a). Specifically, De La Rosa argues that he presented
“heart-wrenching family circumstances,” and that the district
court should have given more weight to the evidence that his
incarceration has caused his family undue hardship. He further
asserts that the court’s doubt of the accuracy of the testimony
of his wife is unsupported. Finally, he states that the court
improperly minimized the family circumstances and relied too
heavily on De La Rosa’s criminal history.
While De La Rosa’s assertions could possibly support a
decision to impose a sentence below the applicable guidelines
range, they do not show that the sentence assessed by the
district court was unreasonable. The district court acknowledged
that the Guidelines were advisory and that it was required to
consider the sentencing factors of § 3553(a). Further, the court
considered all those factors and explained in detail its
reasoning for the imposition of De La Rosa’s 57-month sentence.
De La Rosa has failed to persuade us that the sentence imposed by
the district court is unreasonable.
De La Rosa also repeats his argument unsuccessfully made in
his initial appeal that his sentence under 8 U.S.C. § 1326(b) is
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466(2000), but concedes that the issue is foreclosed by the law of
the case doctrine. This argument is not reconsidered in light of
the law of the case doctrine. See United States v. Becerra, 155
F.3d 740, 752-53 (5th Cir. 1998).
No. 06-40436
-3-
The judgment of the district court is AFFIRMED.