USA v. Hector Avila-Reye

Filing

UNPUBLISHED OPINION FILED. [11-50886 Affirmed] Judge: EMG , Judge: LHS , Judge: CH. Mandate pull date is 07/13/2012 for Appellant Hector Avila-Reyes [11-50886]

Case: 11-50886

Document: 00511896744

Page: 1

Date Filed: 06/22/2012

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 11-50886
Summary Calendar

June 22, 2012
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HECTOR AVILA-REYES, also known as Hector Avila Reyes, also known as
Hector Reyes, also known as Hector Avila, also known as Hector Chino, also
known as Hector Shino,
Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:11-CR-996-1

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
Hector Avila-Reyes appeals the 72-month within-guidelines sentence
imposed in connection with his conviction for illegal reentry after deportation.
Avila-Reyes argues that his sentence, which is on the low end of the applicable
guidelines range, is substantively unreasonable. Specifically, he contends that
the Guideline that governs illegal reentry offenses produced an unreasonable

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50886

Document: 00511896744

Page: 2

Date Filed: 06/22/2012

No. 11-50886
sentence because it is not empirically based, resulted in double-counting of his
criminal history, and failed to account for his personal history and
circumstances. He further argues that the sentence does not account for the
mitigating factor that his return to the United States was motivated by duress
and cites to his legitimate fear of violence upon returning to Mexico.
The substantive reasonableness of a sentence is reviewed for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). Because Avila-Reyes’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). AvilaReyes challenges the presumption of reasonableness applied to his sentence but
acknowledges the issue is foreclosed and raises it to preserve the issue for
further review. See United States v. Mondragon-Santiago, 564 F.3d 357, 366367 (5th Cir. 2009).
We have consistently rejected the argument that the seriousness of this
offense is overstated because U.S.S.G. § 2L1.2 lacks an empirical basis and
double counts criminal history. 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).
The district court considered Avila-Reyes’s arguments for a lesser
sentence, including his arguments that he feared violence upon his return to
Mexico and that he returned to visit his dying mother. Nevertheless, the court
noted the aggravating factors of Avila-Reyes’s numerous prior removals and his
lengthy criminal history.

Based on a consideration of the totality of the

circumstances, the district court elected to impose a sentence within the
guidelines range. Avila-Reyes 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.
Accordingly, the judgment of the district court is AFFIRMED.

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