IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50908

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

OSCAR DAVID HERNANDEZ GONZALEZ,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:13-CR-203-1

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Oscar David Hernandez Gonzalez (Hernandez) appeals the 36-month 

sentence imposed after his guilty-plea conviction for illegal reentry following 

prior deportation. He argues that the above-guidelines sentence is 

substantively unreasonable because it was greater than necessary to satisfy 

the sentencing goals of 18 U.S.C. § 3553(a). He argues that his offense of illegal 

reentry was, at most, an international trespass and that his offense level was 

inflated because U.S.S.G. § 2L1.2 effectively double counts a defendant’s 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

July 22, 2014

Lyle W. Cayce

Clerk

 

 Case: 13-50908 Document: 00512706584 Page: 1 Date Filed: 07/22/2014
No. 13-50908

criminal history. He argues further that the district court gave inordinate 

weight to his remote, relatively minor prior offenses and failed to give sufficient 

weight to his personal circumstances.

Hernandez has not shown that his sentence was substantively 

unreasonable. We have rejected the argument that the Guidelines overstate 

the seriousness of illegal reentry because it is simply an international-trespass 

offense. See United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008). 

We have likewise rejected the argument that a sentence imposed pursuant to 

§ 2L1.2 is necessarily greater than necessary to meet the sentencing goals of 

§ 3553(a) due to any double counting that is inherent in that guideline. See 

United States v. Duarte, 569 F.3d 528, 529–31 (5th Cir. 2009). 

Furthermore, the record reflects that the district court had an adequate 

basis for the sentence imposed and was guided by the § 3553(a) factors in 

deciding that an upward variance was merited. The district court made an 

individualized assessment and concluded that the guidelines range did not 

adequately take into account the § 3553(a) factors, including Hernandez’s 

history and characteristics, the need to promote respect for the laws of the 

United States, the need to provide a just punishment, and the need to deter 

future crimes. Specifically, the district court determined that the guidelines 

range did not account for Hernandez’s extensive prior criminal history. See 

United States v. Smith, 440 F.3d 704, 709 (5th Cir. 2006). Hernandez has not 

shown that the district court abused its discretion in weighing the § 3553(a) 

factors. See Gall v. United States, 522 U.S. 38, 51 (2007). Nor has he shown 

that the district court abused its discretion with respect to the extent of the 

variance. See United States v. Brantley, 537 F.3d 347, 348–50 (5th Cir. 2008).

AFFIRMED.

2

 Case: 13-50908 Document: 00512706584 Page: 2 Date Filed: 07/22/2014