United States v. Marvin Hernandez-Lopez

Case: 14-50109 Document: 00512845230 Page: 1 Date Filed: 11/21/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-50109
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
November 21, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
MARVIN JOSUE HERNANDEZ-LOPEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:13-CR-813-1
Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
Marvin Josue Hernandez-Lopez challenges the within-guidelines
sentence imposed following his guilty plea conviction for illegal reentry
following previous deportation. He argues that his sentence is substantively
unreasonable because he was entitled to a downward departure based on
cultural assimilation. He also argues that he was entitled to a downward
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50109 Document: 00512845230 Page: 2 Date Filed: 11/21/2014
No. 14-50109
departure, pursuant to U.S.S.G. § 5K2.0 and U.S.S.G. § 5H1.3, based on “the
immense psychological and mental hardship he has suffered in prison.”
To the extent that Hernandez-Lopez is challenging the district court’s
refusal to downwardly depart from the recommended guidelines range, we do
not have jurisdiction to review that decision. See United States v. Barrera-
Saucedo, 385 F.3d 533, 535 (5th Cir. 2004). To the extent that he is challenging
the denial of his request for downward variance, the record reflects that the
district court considered Hernandez-Lopez’s arguments for a below-guidelines
sentence, including his cultural assimilation argument. The district court,
however, determined that “out of an abundance of mercy” it would sentence
Hernandez-Lopez to 41 months, despite the record “justify[ing] something
more than just the guidelines.” Hernandez-Lopez has failed to show that the
district court failed to give proper weight to his arguments or any particular
§ 3553(a) factor. See United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th
Cir. 2009). Hernandez-Lopez has failed to rebut the presumption of
reasonableness that is accorded his within-guidelines sentence. See United
States v. Gomez-Herrera, 523 F.3d 554, 565-66 (2008). Thus, he has failed to
show that his sentence is substantively unreasonable. See Gall v. United
States, 552 U.S. 38, 49-51 (2007).
AFFIRMED.
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