USA v. Hermenegildo Melchor-Garcia

Filing

UNPUBLISHED OPINION FILED. [13-50832 Affirmed ] Judge: PEH , Judge: EHJ , Judge: SAH Mandate pull date is 08/06/2015 for Appellant Hermenegildo Melchor-Garcia [13-50832]

Case: 13-50832

Document: 00513118198

Page: 1

Date Filed: 07/16/2015

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

FILED

No. 13-50832
Summary Calendar

July 16, 2015
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HERMENEGILDO MELCHOR-GARCIA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:12-CR-872-1
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Hermenegildo

Melchor-Garcia

(Melchor)

challenges

his

within-

guidelines sentence of 53 months of imprisonment, which was imposed
following his 8 U.S.C. § 1326 conviction of illegal reentry into the United States
after deportation. He argues that his sentence is substantively unreasonable.
Plain error review governs Melchor’s sentencing challenge as he did not
object on this basis in the district court. See Puckett v. United States, 556 U.S.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50832

Document: 00513118198

Page: 2

Date Filed: 07/16/2015

No. 13-50832
129, 135 (2009); United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
“A discretionary sentence imposed within a properly calculated guidelines
range is presumptively reasonable.” United States v. Campos-Maldonado, 531
F.3d 337, 338 (5th Cir. 2008). The presumption of reasonableness “is rebutted
only upon a showing that the sentence does not account for a factor that should
receive significant weight, it gives significant weight to an irrelevant or
improper factor, or it represents a clear error of judgment in balancing
sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
As Melchor acknowledges, his argument challenging the presumption of
reasonableness due to the lack of an empirical basis for § 2L1.2 is foreclosed by
this court’s precedent. See United States v. Mondragon-Santiago, 564 F.3d
357, 366-67 & n.7 (5th Cir. 2009). While Melchor now contends that the district
court improperly analyzed the 18 U.S.C. § 3553(a) factors, he has not shown
that the district court failed to give proper weight to any particular § 3553(a)
factor, gave significant weight to an improper or irrelevant factor, or that his
sentence represents a “clear error of judgment in balancing sentencing factors.”
See Cooks, 589 F.3d at 186.
To the extent Melchor seeks to have this court reweigh the § 3553(a)
factors, this court will not do so, as such an analysis would contravene the
deferential review that applies in this context. See Gall v. United States, 552
U.S. 38, 51 (2007); United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th
Cir. 2008). Additionally, his contention that his offense is a mere international
trespass has been rejected by this court. See United States v. Aguirre-Villa,
460 F.3d 681, 683 (5th Cir. 2006). Finally, the district court’s extensive reasons
for the sentence are sufficient to support the imposition of the three-year term
of supervised release in this instance. See United States v. Becerril-Pena, 714
F.3d 347, 350-51 (5th Cir. 2013).

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Document: 00513118198

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No. 13-50832
The district court’s judgment is AFFIRMED.

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Date Filed: 07/16/2015