Case: 11-50630 Document: 00511786079 Page: 1 Date Filed: 03/13/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 13, 2012
No. 11-50630
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE ELISEO HERNANDEZ-CABEZAS, also known as Juan Ramos, also
known as Jose Hernandez, also known as Jose Hernandez-Cabezas,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:11-CR-759-1
Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
Jose Eliseo Hernandez-Cabezas appeals the 30-month concurrent
sentences imposed in connection with his convictions for attempted illegal
reentry after deportation and false personation in immigration matters.
Hernandez-Cabezas argues that his sentences, which are at the bottom of the
applicable guidelines range, are substantively unreasonable. Relying on United
States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009), Hernandez-Cabezas
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50630
argues that his guidelines range was based in part on his stale 1989 conviction
and thus resulted in an unreasonable sentence. He also contends that the
presumption of reasonableness should not apply because U.S.S.G. § 2L1.2 is not
empirically based and that the district court failed to account for his personal
circumstances when imposing the sentences.
Although he filed objections to the presentence report and a sentencing
memorandum requesting a sentence below the guidelines range, Hernandez-
Cabezas failed to object to his sentence after it was imposed. Arguably, this
court’s review is limited to plain error. See United States v. Peltier, 505 F.3d
389, 391-92 (5th Cir. 2007). This court need not determine whether plain error
review is appropriate because Hernandez-Cabezas’s arguments fail even under
the abuse-of-discretion standard of review. See Gall v. United States, 552 U.S.
38, 51 (2007); United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
Because Hernandez-Cabezas’s sentences were within his advisory
guidelines range, his sentences are presumptively reasonable. See United States
v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Hernandez-Cabezas’s challenge to
the presumption of reasonableness is foreclosed by this court’s precedent. See
United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
This court has also rejected the reasoning of Amezcua-Vasquez and has held
“that the staleness of a prior conviction used in the proper calculation of a
guidelines-range sentence does not render a sentence substantively
unreasonable and does not destroy the presumption of reasonableness that
attaches to such sentences.” United States v. Rodriguez, 660 F.3d 231, 234 (5th
Cir. 2011).
The district court listened to Hernandez-Cabezas’s arguments for a lesser
sentence but imposed a sentence within the guidelines range. His motives for
reentering the United States do not render his sentences substantively
unreasonable. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th
Cir. 2008). Hernandez Cabezas has not shown sufficient reason for this court to
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No. 11-50630
disturb the presumption of reasonableness applicable to his sentences. See
Cooks, 589 F.3d at 186.
Accordingly, the judgment of the district court is AFFIRMED.
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