USA v. Hector Gonsalez-Juarez

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USA v. Hector Gonsalez-Juarez

Doc. 0

Case: 10-50012

Document: 00511208595

Page: 1

Date Filed: 08/19/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-50012 S u m m a r y Calendar August 19, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. H E C T O R GONSALEZ-JUAREZ, also known as Hector Juarez-Gonzalez, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 1:09-CR-443-1

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* H e c t o r Gonsalez-Juarez appeals his sentence following his guilty plea c o n v ic t io n for illegal reentry into the United States. Gonsalez-Juarez was

s e n te n c e d to 60 months of imprisonment and three years of supervised release, w h ic h constituted an upward variance from his advisory guidelines range of 24 t o 30 months of imprisonment. Gonsalez-Juarez contends that his sentence s h o u ld be vacated as substantively unreasonable because it was greater than n e c e s s a r y to satisfy the requirements of 18 U.S.C. § 3553(a).
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Document: 00511208595 Page: 2 No. 10-50012

Date Filed: 08/19/2010

A fte r United States v. Booker, 543 U.S. 220 (2005), a sentence is reviewed fo r reasonableness. Gall v. United States, 552 U.S. 38, 46 (2007). This court fir s t examines whether the district court committed any significant procedural e r r o r . Id. at 51. If the district court's decision is procedurally sound, this court w ill then "consider the substantive reasonableness of the sentence imposed u n d e r an abuse-of-discretion standard." Id. Because Gonsalez-Juarez does not c o n t e n d that the district court committed procedural error, the only issue on a p p e a l is the substantive reasonableness of his sentence. I n pronouncing Gonsalez-Juarez's sentence, the district court noted that G o n s a le z -J u a r e z had not been deterred by the 33-month sentence imposed for h is prior illegal reentry conviction; Gonsalez-Juarez had been engaged in c r im in a l conduct constantly from 1983 to 2009; and many of Gonsalez-Juarez's p a s t convictions, including twenty theft convictions, were not counted in his c r im in a l history score. It stated that an upward variance to 60 months of im p r is o n m e n t was a reasonable sentence when considering Gonsalez-Juarez's h is t o r y of criminal conduct, the fact that his instant illegal reentry charge arose f o l l o w in g another arrest for theft, and his multiple illegal reentries into the U n ite d States. G o n s a le z -J u a r e z argues that the district court should have proceeded c a u t io u s ly in determining the extent of his upward variance because U.S.S.G. § 2L1.2, the guideline governing his illegal reentry conviction, produces r e la t iv e ly high guidelines ranges, as its application results in the counting of a d e fe n d a n t 's criminal history both in increasing the defendant's offense level and in calculating his criminal history score. He also contends that the district court fa ile d to consider that Gonsalez-Juarez returned to the United States based on a benign motive, namely to respond to his daughters' request for his help. Noting that Gonsalez-Juarez's advisory guidelines range would have been 33 t o 41 months of imprisonment had all of his prior convictions been scored, he

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c o n t e n d s that a 41-month sentence would have been sufficient under § 3553(a) a n d that the district court gave no reason why a 60-month sentence was more a p p r o p r ia te than a 41-month sentence. G o n s a le z -J u a r e z 's lengthy criminal history, which included 24 convictions t h a t were not counted in his criminal history score, was one of the factors that t h e district court was permitted to consider in imposing an upward variance. See United States v. Herrera-Garduno, 519 F.3d 526, 531 (5th Cir. 2008); United S ta te s v. Smith, 440 F.3d 704, 709 (5th Cir. 2006). The district court's

c o n s id e r a t io n of Gonsalez-Juarez's criminal history; continuing commission of t h e ft , including in relation to his instant arrest; multiple illegal reentry offenses; a n d commission of the instant offense despite the 33-month sentence imposed fo r his prior illegal reentry conviction reflects consideration of Gonsalez-Juarez's h is t o r y and characteristics, the nature and circumstances of his offense, and the n e e d to promote respect for the law, afford adequate deterrence, and protect the p u b lic from further crimes by Gonsalez-Juarez. See § 3553(a). The district court lis t e n e d at sentencing to the statements from Gonsalez-Juarez's daughter, as w e ll as Gonsalez-Juarez's explanation that he reentered the United States in r e s p o n s e to his daughters' request for his help. " [I ]n applying abuse-of-discretion review, [this court] `must give due d e fe r e n c e to the district court's decision that the § 3553(a) factors, on a whole, ju s tify the extent of the variance.'" Herrera-Garduno, 519 F.3d at 530 (quoting G a ll, 552 U.S. at 51). "[T]he sentencing judge is in a superior position to find fa c t s and judge their import under § 3553(a) with respect to a particular d e fe n d a n t ." United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2 0 0 8 ). "The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the d is t r ic t court." Gall, 552 U.S. at 51. The district court provided individualized, c a s e -s p e c ific reasons for imposing the 60-month sentence, and Gonsalez-Juarez

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h a s not shown that the sentence constituted an abuse of discretion. H e r r e r a -G a r d u n o , 519 F.3d at 530-32. A F F IR M E D .

See

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