IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 courtfollowing his guilty plea

conviction for illegal reentry into the United States was unreasonable; that the

Guidelines failed to account for his difficult childhood, 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.

United States Court of Appeals

Fifth Circuit

F I L E D

March 7, 2012

Lyle W. Cayce

Clerk

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.

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No. 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 the factors in 18 U.S.C. § 3553(a). In evaluating a

3

sentence for substantive reasonableness, this Court applies an abuse of

discretion standard of review. When the district court imposes a sentence

4

within a properly calculated guidelines range and gives proper weight to the

Guidelines and the § 3553(a) factors, this court gives “‘great deference to that

sentence’ and ‘will infer that the judge 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 discretionary 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 represents 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 sentence is

Gall v. United States, 552 U.S. 38, 51 (2007). 

1

Id. 2

Id. 3

United States v. Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir. 2009). 

4

United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008) (quoting

5

United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005)).

Id. 6

 United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).

7

2

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No. 11-50479

entitled to a presumption 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 problems, cultural

assimilation, and family circumstances, as well ashis counsel’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 reentering the United States are insufficient to rebut the presumption of

reasonableness. Hernandez has not shown that the district court abused its 10

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.11

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.12

AFFIRMED.

See Campos-Maldonado, 531 F.3d at 338.

8

See United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2009). 

9

See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008) (upholding 10

a within-guidelines sentence when the appellant had requested a downward variance based

on his cultural assimilation and the fact that he returned to the United States to visit his

ailing father); see also United States v. Caraza-Valdez, 371 F. App’x 552, 553 (5th Cir. 2010)

(unpublished) (per curiam) (affirming a within-guidelines sentence when the appellant argued

that he moved to the United States as a young child and returned to reunite with his family),

cert. denied, 131 S. Ct. 993 (2011).

See Gall, 552 U.S. at 49-51; Lopez-Velasquez, 526 F.3d at 807.

11

See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); United States v. 12

Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).

3

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