USA v. Abel Huerta-Velasquez
UNPUBLISHED OPINION FILED. [16-50315 Affirmed] Judge: WED, Judge: LHS, Judge: SAH. Mandate pull date is 01/13/2017 for Appellant Abel Gerardo Huerta-Velasquez [16-50315]
Date Filed: 12/23/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
December 23, 2016
Lyle W. Cayce
UNITED STATES OF AMERICA,
ABEL GERARDO HUERTA-VELASQUEZ,
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:15-CR-2076-1
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Abel Gerardo Huerta-Velasquez appeals the 24-month sentence imposed
following his guilty plea conviction for illegal reentry following removal in
violation of 8 U.S.C. § 1326(a). He argues that his within-guidelines sentence
is substantively unreasonable. We review the substantive reasonableness of a
sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007).
Because the district court imposed a within-guidelines sentence, it is
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 12/23/2016
presumptively reasonable. See United States v. Campos-Maldonado, 531 F.3d
337, 338 (5th Cir. 2008). The presumption may be 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).
Huerta-Velasquez argues that the guideline for illegal reentry (1) is not
based on empirical data; (2) effectively double counts a defendant’s criminal
record; and (3) overstates the seriousness of his non-violent reentry offense.
This court has upheld the appellate presumption “[e]ven if the Guidelines are
not empirically-grounded.” United States v. Mondragon-Santiago, 564 F.3d
357, 366 (5th Cir. 2009).
Moreover, we have previously rejected these
arguments. See United States v. Duarte, 569 F.3d 528, 530 (5th Cir. 2009);
United States v. Aguirre-Villa, 460 F.3d 681, 682–83 (5th Cir. 2006).
He also argues that his sentence is greater than necessary to reflect his
personal history and characteristics.
This argument fails to rebut the
reasonableness presumption. See United States v. Gomez-Herrera, 523 F.3d
554, 565–66 (5th Cir. 2008) (upholding presumption despite argument that the
relevant Guideline overstated the seriousness of the offense and that the
motive for returning justified a below-guideline sentence).
The record shows that the district court considered the evidence and the
Section 3553(a) factors, concluded that the applicable guidelines range was
reasonable, and imposed a sentence in the middle of the range.
Velasquez’s assertions fail to show that his 24-month within-guidelines
sentence is substantively unreasonable. See Campos-Maldonado, 531 F.3d at
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