United States v. Hermelindo Valdez-Valdez

Case: 12-51304 Document: 00512385504 Page: 1 Date Filed: 09/25/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 25, 2013
No. 12-51304
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HERMELINDO VALDEZ-VALDEZ, also known as Hernelindo V. Valdez, also
known as Hermelindo Valdez Valdez,
Defendant-Appellant
Cons. w/ No. 12-51305
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HERMELINDO VALDEZ-VALDEZ,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:12-CR-122-1
USDC No. 2:12-CR-1097-1
Case: 12-51304 Document: 00512385504 Page: 2 Date Filed: 09/25/2013
No. 12-51304
c/w No. 12-51305
Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
Hermelindo Valdez-Valdez pleaded guilty to attempting to illegally reenter
the United States following prior removal. The district court sentenced him to
a within-guidelines sentence of 27 months of imprisonment and three years of
supervised release. In a related case, the district court revoked Valdez-Valdez’s
term of supervised release arising from a prior conviction for illegal reentry and
sentenced him to a consecutive sentence of 12 months of imprisonment with no
further term of supervised release. Valdez-Valdez timely filed notices of appeal
from both judgments, and the cases were consolidated on appeal.
Valdez-Valdez asserts that the 27-month sentence imposed for his illegal-
reentry conviction was substantively unreasonable. He argues that his sentence
was greater than necessary to meet the sentencing goals set forth in 18 U.S.C.
§ 3553(a) because the district court did not appropriately account for a number
of mitigating factors, including, inter alia, the nonviolent nature of his illegal-
reentry offense, his lack of serious criminal history in the years preceding the
instant offense, and his prior substance abuse. Valdez-Valdez also contends that
the Guideline utilized in this case, U.S.S.G. § 2L1.2, effectively causes a
defendant to be punished twice for his prior criminal conduct and that the
application of § 2L1.2 in this case produced a sentencing range that overstated
the seriousness of his illegal-reentry offense, which, in effect, was tantamount
to “international trespass.”
Valdez-Valdez makes no argument that the district court committed any
procedural error regarding his sentence. Thus, our review is confined to whether
the sentence was substantively unreasonable. See Gall v. United States, 552
*
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.
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U.S. 38, 51 (2007). Valdez-Valdez did not adequately object in the district court
to the reasonableness of his sentence, and, therefore, our review is for plain
error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
Valdez-Valdez has not shown error, plain or otherwise. The record reflects
that the district court’s sentencing decision was based upon an individualized
assessment of the facts in light of the § 3553(a) factors. See Gall, 552 U.S. at
49-51. The district court’s determination of the proper sentence is entitled to
deference, and we may not reweigh the § 3553(a) factors or reverse a sentence
even if we might reasonably conclude that a different sentence is appropriate.
Id. at 51-52. Valdez-Valdez’s mitigation arguments are insufficient to rebut the
presumption of reasonableness applicable to his within-guidelines sentence. See
United States v. Rodriguez, 660 F.3d 231, 234 (5th Cir. 2011); United States v.
McElwee, 646 F.3d 328, 346-47 (5th Cir. 2011); United States v. Aguirre-Villa,
460 F.3d 681, 683 (5th Cir. 2006). Furthermore, we have rejected his arguments
that his sentence was unreasonable because § 2L1.2 effectively double counts a
defendant’s criminal history. See United States v. Duarte, 569 F.3d 528, 529-30
(5th Cir. 2009). Accordingly, the judgment in Case No. 12-51305 is AFFIRMED.
Valdez-Valdez also challenges the substantive reasonableness of the 12-
month sentence imposed following the revocation of his supervised release. He
argues that the sentence was greater than necessary to satisfy the § 3553(a)
sentencing factors because it overstated his likelihood of recidivism and his risk
of danger to the community and failed to account sufficiently for the same factors
that were allegedly disregarded in imposing his sentence for his illegal-reentry
offense.
We review preserved challenges to revocation sentences under a “plainly
unreasonable” standard. United States v. Miller, 634 F.3d 841, 843 (5th Cir.
2011). However, because Valdez-Valdez failed to object sufficiently in the
district court to the reasonableness of his revocation sentence, our review is for
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plain error. See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009).
Valdez-Valdez has not shown error, plain or otherwise, with regard to his
revocation sentence. His 12-month sentence was within the sentencing range
recommended by the policy statements and was within the statutory maximum
term of imprisonment that the district court could have imposed. See 18 U.S.C.
§ 3583(e)(3); § 7B1.4(a). Because the sentence was within the recommended
sentencing range, it is entitled to a resumption of reasonableness. See United
States v. Lopez-Velasquez, 526 F.3d 804, 809 (5th Cir. 2008). As discussed,
Valdez-Valdez’s mitigation arguments are insufficient to rebut the presumption
of reasonableness. See Rodriguez, 660 F.3d at 234; McElwee, 646 F.3d at 346-47;
Aguirre-Villa, 460 F.3d at 683. To the extent that Valdez-Valdez disagrees with
the revocation sentence or disputes the weight that the district court afforded
various sentencing factors, he similarly has failed to rebut the presumption of
reasonableness. See Lopez-Velasquez, 526 F.3d at 808-09; Ruiz, 621 F.3d at 398.
Accordingly, the judgment in Case No. 12-51304 is AFFIRMED.
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