USA v. Josue Hernandez-Chaparro
UNPUBLISHED OPINION FILED. [10-50415 Affirmed ] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 02/10/2011 for Appellant Josue Hernandez-Chaparro [10-50415]
Case: 10-50415 Document: 00511356494 Page: 1 Date Filed: 01/20/2011
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
January 20, 2011
Lyle W. Cayce
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:09-CR-3021-1
Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
Josue Hernandez-Chaparro appeals his sentence following his guilty plea
conviction for illegal reentry into the United States in violation of 8 U.S.C.
§ 1326. Hernandez-Chaparro was sentenced within his advisory guidelines
range to 57 months of imprisonment and three years of supervised release. He
contends that his sentence is not entitled to a presumption of reasonableness
because U.S.S.G. § 2L1.2, the guideline applicable to violations of § 1326, is not
empirically based and double counts a defendant’s criminal history.
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
Case: 10-50415 Document: 00511356494 Page: 2 Date Filed: 01/20/2011
acknowledged by Hernandez-Chaparro, this argument is foreclosed. See United
States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378
Hernandez-Chaparro also contends that his sentence should be vacated as
substantively unreasonable because it was based in part on § 2L1.2 and was
greater than necessary to meet the requirements of 18 U.S.C. § 3553(a).
Regarding § 3553(a), Hernandez-Chaparro contends that his sentence overstated
the seriousness of his illegal reentry offense and failed to properly reflect his
personal history and characteristics.
The substantive reasonableness of
Hernandez-Chaparro’s sentence is reviewed for plain error because he did not
object on that ground in the district court. See United States v. Ruiz, 621 F.3d
390, 398 (5th Cir. 2010) (citing United States v. Peltier, 505 F.3d 389, 391-92 (5th
Cir. 2007)). Hernandez-Chaparro’s appellate arguments fail to establish any
error in his sentence, plain or otherwise. See Duarte, 569 F.3d at 529-31; United
States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
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