USA v. Antonio Gonzalez-Hernandez

Filing 920101220

Opinion

Case: 10-50246 Document: 00511325566 Page: 1 Date Filed: 12/17/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-50246 S u m m a r y Calendar December 17, 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. A N T O N I O GONZALEZ-HERNANDEZ, 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. 2:09-CR-256-1

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* A n t o n io Gonzalez-Hernandez appeals his within-guidelines sentence im p o s e d upon his conviction for illegal reentry. See 8 U.S.C. § 1326. He argues t h a t his 78-month sentence is unreasonable because it is greater than necessary t o effectuate the sentencing goals of 18 U.S.C. § 3553(a). He argues that the 16le v e l enhancement required by the illegal reentry guideline overstated the risk o f recidivism and the risk of danger he poses to the community and greatly o v e r s ta te d the seriousness of his offense. He argues further that his guideline
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50246 Document: 00511325566 Page: 2 Date Filed: 12/17/2010 No. 10-50246 r a n g e of imprisonment failed to account for a childhood during which his parents d ie d when he was very young. A t sentencing, the district court found that the Guidelines were adequate a n d that a fair and reasonable sentence could be achieved with a sentence within t h e advisory range. The district court stated that even if it did not choose to fo llo w the Guidelines, it would still find 78 months to be an adequate sentence g iv en Gonzalez's "grossly undercounted criminal history." Gonzalez had 30 prior c o n v ic t io n s for which he received no criminal history points because 29 of them w e r e too old and one was a non-countable misdemeanor. The district court also r e je c t e d Gonzalez's argument that his sentence did not reflect his difficult c h ild h o o d , noting that under the Guidelines, family history is not relevant. The d is t r ic t court found that Gonzalez's childhood did not justify a sentence below t h e advisory guideline range. T h e district court gave sufficient reasons for imposing a within-guidelines s e n te n c e . See Rita v. United States, 551 U.S. 338, 356 (2007). Gonzalez has not r e b u t te d the presumption of reasonableness applicable to his within-guidelines s e n te n c e . See id. at 347. Therefore, he has not shown that the district court a b u s e d its discretion in imposing a sentence within the applicable guidelines r a n g e . See Gall v. United States, 552 U.S. 38, 46, 51 (2007). A F F IR M E D .

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