IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 10, 2012
No. 11-51192 c/w No. 11-51193
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ELIAS HERNANDEZ-MARTINEZ,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 3:11-CR-1537-1
USDC No. 3:06-CR-956-1
Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
Elias Hernandez-Martinez pleaded guilty to illegal reentry following
deportation in violation of 8 U.S.C. § 1326. The district court sentenced him to
46 months of imprisonment, which was within the guidelines range of 41-51
months. The court also revoked Hernandez-Martinez’s probation on a prior
conviction and imposed a concurrent sentence of 10 months. Hernandez-
Martinez now appeals.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-51192 c/w No. 11-51193
Hernandez-Martinez challenges only the substantive reasonableness of his
sentence, arguing that his sentence is greater than necessary to accomplish the
sentencing objectives of 18 U.S.C. § 3553(a). He challenges the application of
U.S.S.G. § 2L1.2 in calculating his guidelines range because he asserts that the
guideline is not empirically based and double counts his prior conviction. He
also contends that the district court failed to account for his personal
circumstances and the circumstances of this offense. Specifically, he argues that
his offense was not violent and that it was, at most, international trespass. He
also cites to the facts that he was culturally assimilated and returned to the
United States to be with his family.
Although Hernandez-Martinez argued for a downward variance, he failed
to object after the imposition of his sentence. Hernandez-Martinez concedes that
he failed to object to his sentence after it was imposed and that this court’s
review is limited to plain error. Nevertheless, he seeks to preserve for further
review his contention that an objection after the imposition of sentence is not
required for abuse-of-discretion review. Because Hernandez-Martinez did not
object to the reasonableness of his sentence after it was imposed, review is
arguably for plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th
Cir. 2007); but see United States v. Flanagan, 87 F.3d 121, 124 (5th Cir. 1996).
This court need not determine whether plain error review is appropriate because
Hernandez-Martinez’s arguments fail even under the abuse-of-discretion
standard of review. See United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir.
2008).
The substantive reasonableness of a sentence is reviewed under an
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007).
Because Hernandez-Martinez’s sentence was within his advisory guidelines
range, his sentence is presumptively reasonable. See United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009).
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No. 11-51192 c/w No. 11-51193
Hernandez-Martinez’s argument that the seriousness of his offense is
overstated because U.S.S.G. § 2L1.2 double counts his criminal history has been
consistently rejected. See United States v. Rodriguez, 660 F.3d 231, 232-33 (5th
Cir. 2011); United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir. 2009).
Similarly, we have not been persuaded by the contention that the Guidelines fail
to account for the nonviolent nature of an illegal reentry offense. See United
States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006).
The district court listened to Hernandez-Martinez’s arguments for a lesser
sentence but found that a sentence within the guidelines range was appropriate.
His contentions regarding his cultural ties and his benign motive for reentry do
not rebut the presumption of reasonableness. See United States v. Gomez-
Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); United States v. Lopez-Velasquez,
526 F.3d 804, 807 (5th Cir. 2008). Thus, Hernandez-Martinez has not shown
sufficient reason for this court to disturb the presumption of reasonableness
applicable to his sentence. See Cooks, 589 F.3d at 186.
Finally, Hernandez-Martinez raises no claims of error with respect to the
revocation proceeding or the revocation sentence. Thus, he has abandoned any
issues on appeal regarding the revocation judgment. See Yohey v. Collins, 985
F.2d 222, 224-25 (5th Cir. 1993).
Accordingly, the judgment of the district court in No. 11-51192 and the
Order Revoking Probation in No. 11-51193 are AFFIRMED.
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