628 F. App'x 278

UNITED STATES of America, Plaintiff-Appellee, v. Oscar Gael HERRERA-AVILES, also known as Oscar Gael Aviles-Herrera, Defendant-Appellant.

No. 15-50359

Summary Calendar,

United States Court of Appeals, Fifth Circuit.

Jan. 5, 2016.

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney’s Office, San Antonio, TX, for Plaintiff-Appellee.

Judy Fulmer Madewell, Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Federal Public Defender’ Office, San Antonio, TX, for Defendant-Appellant.

Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.

PER CURIAM: *

Oscar Gael Herrera-Aviles challenges his 41-month sentence imposed following his guilty-plea conviction for illegal reentry into the United States after removal, in violation of 8 U.S.C. § 1326(a). As he did in district court, he contends the sentence is unreasonable because it is greater than necessary to satisfy the sentencing goals of 18 U.S.C. § 3553(a).

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 Guidelines sentencing range for use in deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 48-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (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).

Herrera’s sentence is within the adviso- ry Guidelines sentencing range; therefore, it is entitled to a presumption of reasonableness. E.g., United States v. Cooks, 589 F.3d 173, 186 (5th Cir.2009); United *279States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.2008). Herrera asserts the court failed to account for his personal circumstances, and his motive for re-entering the United States. The court, which was “in a superior position to find facts and judge their import under § 3553(a)”, considered Herrera’s mitigating contentions, addressed them at sentencing, and imposed a sentence within the advisory sentencing range. Campos-Maldonado, 531 F.3d at 339., Accordingly, Hexrera’s contentions are insufficient to rebut the presumption of reasonableness.

Moreover, our court has repeatedly rejected Herrera’s assertion that Guideline § 2L1.2’s double-counting of a prior conviction, in calculating a defendant’s offense level and criminal history score, necessarily renders a sentence unreasonable. E.g., United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.2009). Similarly, we have repeatedly rejected substantive-reasonableness challenges based on the alleged lack of seriousness of illegal reentry. E.g., United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir.2008); United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).

Finally, as Herrera concedes, his contention that the presumption of reasonableness should not be applied to his sentence because Guideline § 2L1.2 lacks an empirical basis, is foreclosed by our court’s precedent. (He raises the issue only to preserve it for possible further review.) E.g., Duarte, 569 F.3d at 530-31; United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir,2009).

AFFIRMED.

United States v. Herrera-Aviles
628 F. App'x 278

Case Details

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United States v. Herrera-Aviles
Decision Date
Jan 5, 2016
Citations

628 F. App'x 278

Jurisdiction
United States

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