### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-50479 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. ROBERTO HERNANDEZ-HERNANDEZ, also known as Roberto Hernandez, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:11-CR-65-1

Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges. PER CURIAM: * Roberto Hernandez-Hernandez (Hernandez) argues that the 46-month within-guidelines sentence imposed by the district co u r t following his guilty plea conviction for illegal reentry into the United States was unreasonable; that the Guidelines failed to account for his difficult child h o o d , his substance abuse problems, his cultural assimilation, and his family circumstances; and that the district court erred in refusing his request for a downward variance. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D March 7, 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-50479 Document: 00511780129 Page: 1 Date Filed: 03/07/2012No. 11-50479

This Court engages in a bifurcated analysis of the sentence imposed by the district court. This Court first examines whether the district court committed 1
any significant procedural errors. If the district court’s decision is procedurally 2 sound, as here, this Court will then consider the substantive reasonableness of the sentence, considering t h e f a ctors in 18 U.S.C. § 3553(a). In evaluating a 3 sentence for substantive reasonableness, this Court applies an abuse o f d i s c r e tion standard of review. When the district court imposes a sente n c e 4 within a p roperly calculated guidelines range and gives proper weight to the Gui d e l i n e s a nd the § 3553(a) factors, this court gives “‘great deference to that sentence’ and ‘will infer that t h e j u dge has considered all the factors for a fair sentence set forth in the Guidelines’ in light of the sentencing considerations set out in § 3553(a).” “A discret i o nary sentence imposed within a properly 5 calculated guidelines range is presumptively reasonable.” “The presumption is 6 rebutted only upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represen t s a clear error of judgment in balancing sentencing factors.” 7 Hernandez has not shown that the sentence imposed by the district court

was substantively unreasonable. The 46-month within-guidelines sente n ce is

Ga llv . Uni ted Sta tes , 552 U. S. 38, 51 (200 7). 1
Id. 2
Id. 3
Uni ted Sta tes v. G utier rez -H ern ande z , 581 F.3d 251 , 254 (5t h Cir

. 2009)

. 4
Uni ted States v. Cam pos -M al dona do , 531 F.3d 337, 338 (5t h Cir. 2008) (qu o t i n g 5 Uni ted Sta tes v. M

ar es , 402 F.3d 511 , 519- 20 ( 5th Cir. 200 5))

. Id. 6
Uni ted Sta tes v. Coo ks , 589 F.3d 173 , 186 (5t h Cir

. 2009)

. 7 2 Case: 11-50479 Document: 00511780129 Page: 2 Date Filed: 03/07/2012No. 11-50479

entitled to a presump t i o n of reasonableness. The record indicates that the 8 district court considered the information in the Presentence Report concerning Hernandez’s difficult childhood, his substance abuse prob l e m s , cultural assimilation, and family circumstances, a s w e l l a s h i s c ounsel’s arguments at the sentencing hearing. Although cultural assimilation can be a mitigating factor, nothing requires the district court to give it ? dispositive weight.” His reasons 9 for reenteri n g t he United States are insufficient to rebut the presumption of reasonableness. Hernandez has not shown that the d i s t r i ct court abused its 1 0 discretion in imposing a sentence within the advisory guidelines range or in not according more weight to his difficult childhood, his substance abuse problems, cultural assimilation, and family circumstances. 1 1 Hernandez also asserts that the appellate presumption of reasonableness should not apply to his sentence because the illegal reentry Guideline, U.S.S.G. § 2L1.2, is not empirically based. He correctly acknowledges that this argument is foreclosed by this Court’s precedent and states that he is raising it to preserve it for possible further review. 1 2 AFFIRMED.

See Cam pos -M al dona do , 531 F.3d at 338

. 8
See Uni ted Sta tes v. Lop ez -V el as quez , 526 F.3d 804 , 807 (5t h Cir

. 2009)

. 9
See Uni ted States v. Go me z- He rre ra , 523 F.3d 554, 565- 66 (5t h Cir. 2008) (up hold ing 1 0 a wit hin- guide lines sent ence when the app ellant had r eques teda dow nw ardvariance based on his cult ural ass i mi lati on and the fac t that he ret urned to the Unit ed Sta tes to visi t his ailing fa ther ); see als o Uni ted States v. Ca raza -V al dez , 371 F. App ’x 5 52, 553 (5t h Cir. 2010) (unp ublis hed) (p er cur iam ) (af fir mi ng a wi thin- guide lines se n te n ce wh en the app ellant argued that he mo ved to the Unit ed Sta tes as a young child and ret urned to reuni te wi th his fam ily), cer t. deni ed , 131 S. Ct

. 993 (201 1).

See Ga ll , 552 U. S. at 49- 51; Lope z- Ve la sque z , 526 F.3dat 807

. 1 1
See Uni ted States v. Du ar te , 569 F.3d 528, 529- 31 ( 5 t h C i r . 2 009) ; Uni ted States v. 1 2 Mo ndra gon-Sa ntia

go , 564 F.3d357 , 366- 67 ( 5th Cir. 200 9). 3 Case: 11-50479 Document: 00511780129 Page: 3 Date Filed: 03/07/2012