United States v. Marco Hernandez-Lopez

Case: 15-50245 Document: 00513267996 Page: 1 Date Filed: 11/12/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 15-50245
Summary Calendar
United States Court of Appeals
Fifth Circuit

FILED
November 12, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee

v.

MARCO TULIO HERNANDEZ-LOPEZ,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:14-CR-807-1

Before JOLLY, BENAVIDES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Marco Tulio Hernandez-Lopez (Hernandez) appeals his 41-month
within-guidelines sentence for illegal reentry into the United States following
removal. Hernandez argues that his sentence is substantively unreasonable
because the sentence was greater than necessary to achieve the goals of 18
U.S.C. § 3553(a). He asserts that a presumption of reasonableness should not
be applied to his within-guidelines sentence because the Guideline on which it

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50245 Document: 00513267996 Page: 2 Date Filed: 11/12/2015

No. 15-50245

was based, U.S.S.G. § 2L1.2, is not empirically based. He asserts that his
guidelines range was greater than necessary because § 2L1.2 double counted
his prior convictions and because his offense was a mere trespass. In addition,
Hernandez maintains that the sentence failed to reflect his personal history
and characteristics because he made a decent living in the United States while
only working for sustenance in Honduras and because this was his first illegal
reentry offense and he was unaware of the severity of the consequences he
faced by returning to the United States, where he had previously lived and
worked.
A discretionary sentence imposed within the advisory guidelines range
is presumptively reasonable. United States v. Campos-Maldonado, 531 F.3d
337, 338 (5th Cir. 2008). As Hernandez acknowledges, his assertion that we
should not apply a presumption of reasonableness because § 2L1.2 is not
empirically based is foreclosed. See United States v. Duarte, 569 F.3d 528, 529-
31 (5th Cir. 2009). The international trespass and the double counting of prior
convictions arguments that Hernandez raises have both been previously
rejected. See Duarte, 569 F.3d at 529-31; United States v. Juarez-Duarte, 513
F.3d 204, 212 (5th Cir. 2008).
The district court weighed the sentencing factors, rejected Hernandez’s
personal arguments, and imposed a within-guidelines sentence based on the
serious nature of Hernandez’s prior conviction and his rapid reentry following
removal. As Hernandez was sentenced within the guidelines range, the
sentence is entitled to a presumption of reasonableness, and Hernandez has
not shown sufficient reason for us to disturb that presumption. See United
States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
AFFIRMED.

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