United States v. Manuel Hernandez-Hernandez ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 17, 2009
No. 09-50344
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MANUEL HERNANDEZ-HERNANDEZ, also known as Manuel Ernesto
Hernandez-Hernandez,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:09-CR-95-1
Before GARWOOD, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
Manuel Hernandez-Hernandez (Hernandez) pleaded guilty to attempted
illegal reentry into the United States following deportation and in April 2009
was sentenced to serve 48 months in prison. He contends that U.S.S.G. § 2L1.2
improperly results in the use of his prior murder conviction to determine both
his offense level and his criminal history score. He contends also that the
sentence imposed was greater than necessary, in light of the sentencing factors
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50344
set forth in 18 U.S.C. § 3553(a), and that it is therefore unreasonable.
Hernandez concedes that precedent forecloses his argument that the lack of a
fast-track program in the Western District of Texas makes his sentence
unreasonable because it creates an unwarranted disparity between it and
sentences meted to defendants in districts having such a program. See United
States v. Gomez-Herrera, 523 F.3d 554, 563 (5th Cir.), cert. denied, 129 S. Ct. 624
(2008).
We review a sentence for reasonableness. See Gall v. United States, 552
U.S. 38, 46, 49-50 (2007). We first decide whether the district court committed
any procedural errors, such as incorrectly calculating the advisory guidelines
range or failing to consider the sentencing factors set forth in § 3553(a). Gall,
552 U.S. at 51.
Hernandez’s challenge to the application of § 2L1.2 is unavailing. We first
note that the defendant’s asserted error is unpreserved because he raises this
procedural, double counting issue for the first time on appeal. United States v.
Hernandez-Martinez, 485 F.3d 270, 272 (5th Cir. 2007). The trial court did not
first have an opportunity to evaluate the merits of the defendant’s double
counting argument. Therefore, we review only for plain error. United States v.
Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). Here, Hernandez is unable to even
establish error, let alone plain error. “Double counting is impermissible only
where the guidelines at issue prohibit it.” United States v. Gaytan, 74 F.3d 545,
560 (5th Cir. 1996). The commentary to § 2L1.2 states that “[a] conviction taken
into account under subsection (b)(1) is not excluded from consideration of
whether that conviction receives criminal history points.” § 2L1.2, comment.
(n.6). We have upheld double counting under similar circumstances involving
U.S.S.G. § 2K1.2. See United States v. Hawkins, 69 F.3d 11, 13-15 (5th Cir.
1995). It was not improper to use Hernandez’s murder conviction to enhance his
offense level and to calculate his criminal history points.
2
No. 09-50344
Since the sentence is procedurally sound, we next consider the substantive
reasonableness of the sentence. Gall, 552 U.S. at 51. We review the substantive
reasonableness of the sentence for an abuse of discretion. United States v.
Simmons, 568 F.3d 564, 566 (5th Cir. 2009). We conclude that Hernandez’s
sentence is substantively reasonable also. Because it is within the properly
calculated guidelines range, the sentence may be presumed reasonable on
appeal. See Rita v. United States, 551 U.S. 338, 347 (2007). Moreover, the
district court gave extensive consideration to Hernandez’s argument for a
variance below the advisory guideline range but determined that the record
counseled in favor of a sentence at the low end of that range. The district court
specifically found that the guidelines range provided for a sentence that would
be an effective deterrent to recidivism, would protect the safety and welfare of
the community, and would promote respect for the law. See § 3553(a).1
Hernandez advances no good reason for us to disturb the sentence selected by
the district court. See Gall, 552 U.S. at 51. Consequently, the sentence stands.
AFFIRMED.
1
The PSR, for example, reflects that on his attempted reentry Hernandez used a false
Illinois birth certificate in the name of another and also possessed a Social Security card in the
name of that other person.
3