United States v. Jacobo Heide-Kehler ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 15, 2009
No. 09-50176
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JACOBO HEIDE-KEHLER,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-2847-1
Before KING, JOLLY, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
The district court sentenced Jacobo Heide-Kehler to serve 46 months in
prison and a three-year term of supervised release following Heide-Kehler’s
conviction of one count of attempted illegal reentry into the United States. In
this appeal, Heide-Kehler challenges his sentence, which was within the
applicable guidelines range, as being too severe. He argues that the pertinent
Guideline, U.S.S.G. § 2L1.2, improperly double counted his prior conviction and
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50176
that the district court did not properly weigh the sentencing factors given in 18
U.S.C. § 3553(a).
Following United States v. Booker, 543 U.S. 220 (2005), we review
sentences for reasonableness in light of the sentencing factors in § 3553(a).
United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). Pursuant to Gall
v. United States, 552 U.S. 38 (2007), we engage in a bifurcated review of the
sentence imposed by the district court. United States v. Delgado-Martinez, 564
F.3d 750, 752 (5th Cir. 2009). First, we consider whether the district court
committed a “significant procedural error.” Id. at 752-53. If there is no such
error, we then review the substantive reasonableness of the sentence imposed
for an abuse of discretion. Id. at 751-53.
We have previously rejected the argument that a sentence imposed in
accordance with § 2L1.2 is greater than necessary to meet § 3553(a)’s goals as
a result of the alleged double counting inherent in that Guideline. See United
States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378(2009). Heide-Kehler’s double counting argument is thus unavailing.
Heide-Kehler’s arguments concerning the district court’s balancing of the
§ 3553(a) factors amount to a disagreement with the district court’s weighing of
these factors and the appropriateness of his within-guidelines sentence. He has
not shown that his sentence was either procedurally or substantively
unreasonable, nor has he rebutted the presumption of reasonableness that
attaches to his within-guidelines sentence. See United States v. Armstrong, 550
F.3d 382, 405 (5th Cir. 2008), cert. denied, 130 S. Ct. 54 (2009); United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
The judgment of the district court is AFFIRMED.
2