Case: 12-50016 Document: 00512029264 Page: 1 Date Filed: 10/23/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 23, 2012
No. 12-50016
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LUIS ANTONIO MORENO-HERNANDEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:11-CR-1609-1
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Luis Antonio Moreno-Hernandez appeals from the sentence imposed
following his guilty-plea conviction for illegal reentry. The district court
sentenced him to a within-guidelines term of 46 months of imprisonment and to
three years of supervised release. Moreno challenges the substantive
reasonableness of the sentence, arguing that his sentence is unreasonable
because it is greater than necessary to achieve the sentencing goals of 18 U.S.C.
§ 3553(a). He contends that the illegal reentry Guideline, U.S.S.G. § 2L1.2, is
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50016 Document: 00512029264 Page: 2 Date Filed: 10/23/2012
No. 12-50016
not empirically based and resulted in the triple counting of his criminal history.
Relying on Kimbrough v. United States, 552 U.S. 85, 109-10 (2007), he argues
that the presumption of reasonableness should not apply, but he concedes his
argument is foreclosed by United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.
2009). He raises the argument to preserve it for possible review by the Supreme
Court. See United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.
2009). He further asserts that the guideline range overstated the seriousness
of the offense and failed to account for his benign motive for reentering.
His arguments are reviewable only for plain error because Moreno did not
make any objections to his sentence or argue in the district court that his
sentence was unreasonable. See Puckett v. United States, 556 U.S. 129, 134-35
(2009); United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007) (requiring
objection to substantive unreasonableness of sentence to preserve error).
Moreno’s argument that his within-guidelines sentence was greater than
necessary to meet § 3553(a)’s goals as a result of triple counting fails. See
Duarte, 569 F.3d at 529-31. In addition, the district court heard Moreno’s
statement concerning his reasons for reentering the United States before
imposing a sentence within the advisory guideline range. The district court
considered the statutory sentencing factors in § 3553(a) prior to imposing a
sentence within the Guidelines. Moreno’s within-guidelines sentence is entitled
to a presumption of reasonableness. See Rita v. United States, 551 U.S. 338, 347
(2007). He has failed to show that the presumption should not apply. The
district court did not abuse its discretion, much less plainly err, in imposing a
sentence within the advisory guideline range. See Gall v. United States, 552
U.S. 38, 50-51 (2007).
AFFIRMED.
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