United States v. Elvis Hernandez-Alvares

Case: 12-50753 Document: 00512225166 Page: 1 Date Filed: 04/30/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 30, 2013
No. 12-50753
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ELVIS OCTAVIO HERNANDEZ-ALVARES,
Defendant - Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:11-CR-1324-1
Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Elvis Octavio Hernandez-Alvares challenges his 46-month imprisonment
sentence imposed after pleading guilty to illegally reentering the United States
after deportation. He contends the sentence is greater than necessary to satisfy
the sentencing factors of 18 U.S.C. § 3553(a) because: the advisory Sentencing
Guidelines overstate the seriousness of his instant and prior offenses; and the
court gave inadequate consideration to his personal circumstances and benign
motive for reentry.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-50753 Document: 00512225166 Page: 2 Date Filed: 04/30/2013
No. 12-50753
Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 48-51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines is
reviewed de novo; its factual findings, only for clear error. E.g., United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas,
404 F.3d 355, 359 (5th Cir. 2005).
Hernandez essentially asks to substitute his assessment of the relevant
sentencing factors for the district court’s thoroughly reasoned assessment, which
is contrary to the deferential review dictated by Gall and Rita v. United States,
551 U.S. 338, 351 (2007). (Hernandez concedes his challenge to Guideline
§ 2L1.2 as lacking an empirical basis is foreclosed by our precedent; he presents
this issue only to preserve it for possible further review.)
AFFIRMED.
2