United States v. Hernandez-Aguirre

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 28, 2007
No. 07-50139
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MARIA DEL CARMEN HERNANDEZ-AGUIRRE
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:06-CR-752-ALL
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Maria Del Carmen Hernandez-Aguirre (Hernandez) appeals her sentence
for illegal reentry after deportation in violation of 8 U.S.C. § 1326. She contends
that the 46-month sentence imposed was unreasonable because it was greater
than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a). Specifically,
Hernandez argues that the sentence failed to account for the fact that her prior
felony drug trafficking offense occurred when she was a teenager, this was her
only prior offense, she entered the United States to see her eight-year old
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-50139
daughter, and she was not a danger to the public or likely to commit future
crimes.
Where the district court exercises its discretion to impose a sentence
within a properly calculated guideline range, the sentence is presumptively
reasonable, and this court may infer that the district court considered all the
factors for a fair sentence set forth in the Guidelines. See Rita v. United States,
127 S. Ct. 2456, 2462-70 (2007); United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006). Here, the record reflects that the district court considered
Hernandez’s arguments, the recommendations of the presentence report, the
applicable guideline range, and the § 3553(a) factors. Hernandez has failed to
demonstrate that the district court clearly erred in exercising its broad
sentencing discretion by imposing a sentence that failed to account for
sentencing factors entitled to significant weight, gave significant weight to
improper or irrelevant factors, or represented a clear error of judgment in
balancing the sentencing factors. See United States v. Nikonova, 480 F.3d 371,
376 (5th Cir.), cert. denied, 128 S. Ct. 163 (2007).
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Hernandez
challenges the constitutionality of § 1326(b)’s treatment of prior felony and
aggravated felony convictions as sentencing factors rather than elements of the
offense that must be found by a jury. This court has held that this issue is “fully
foreclosed from further debate.” United States v. Pineda-Arrellano, 492 F.3d
624, 625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202).
Accordingly, the district court’s judgment is AFFIRMED.
2