United States v. Juan Hernandez-Calvillo

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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 15, 2009
                                     No. 09-50304
                                  Conference Calendar                  Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JUAN CARLOS HERNANDEZ-CALVILLO,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:08-CR-3373-1


Before KING, JOLLY, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Juan Carlos Hernandez-Calvillo (Hernandez) appeals the sentence
imposed following his guilty plea to illegal reentry. He argues that his within-
guidelines sentence was greater than necessary to satisfy the goals of 18 U.S.C.
§ 3553(a). Hernandez did not object to the substantive reasonableness of his
sentence in the district court; therefore, our review is for plain error only. See
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 09-50304

      Hernandez argues that U.S.S.G. § 2L1.2 improperly double counted his
prior conviction. We have rejected the argument that a sentence imposed in
accordance with § 2L1.2 is greater than necessary to meet § 3553(a)’s goals as
a result of the alleged double counting inherent in that Guideline. See United
States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378
(2009).
      Hernandez additionally argues that the guidelines range failed to reflect
his personal history and characteristics, arguing that his pure motive for
returning to the United States mitigates the seriousness of the offense. This
argument is unavailing. Cf. United States v. Gomez-Herrera, 523 F.3d 554,
565-66 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008). The district court, which
was in a superior position to apply the § 3553(a) factors, considered and rejected
Hernandez’s argument. See United States v. Campos-Maldonado, 531 F.3d 337,
339 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008). The record reflects that the
district court did not commit error, plain or otherwise, in determining that a
sentence of 42 months of imprisonment would satisfy the sentencing objectives
of § 3553(a).
      AFFIRMED.




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