USA v. Julio Hernandez-Archila

Filing

UNPUBLISHED OPINION FILED. [17-50059 Affirmed 17-50071 Affirmed ] Judge: TMR , Judge: ECP , Judge: JEG Mandate issue date is 11/28/2017 for Appellants Julio Cesar Hernandez-Archila and Julio Cesar Hernandez-Archilla [17-50059, 17-50071]

Case: 17-50059

Document: 00514226365

Page: 1

Date Filed: 11/06/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-50059
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
November 6, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.

JULIO CESAR HERNANDEZ-ARCHILA, also known as Julio Cesar
Hernandez-Archilla,
Defendant-Appellant
---------------------------------------------------------------------------------------Consolidated with: 17-50071
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JULIO CESAR HERNANDEZ-ARCHILA,
Defendant - Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 3:16-CR-1410-1
USDC No. 3:16-CR-1699-1

Case: 17-50059

Document: 00514226365

Page: 2

Date Filed: 11/06/2017

No. 17-50059
c/w No. 17-50071
Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
In these consolidated appeals, Julio Cesar Hernandez-Archila challenges
(1) the 21-month term of imprisonment imposed for his conviction of illegal
reentry of the United States after deportation, and (2) the consecutive 18month term of imprisonment imposed following the revocation of his
supervised release for a prior illegal reentry offense.

He argues that the

combined sentence is greater than necessary to achieve the sentencing goals of
18 U.S.C. § 3553(a) and therefore is substantively unreasonable.
Because Hernandez-Archila did not object to the reasonableness of his
sentences in the district court, we will review for plain error. See United States
v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009); United States v. Peltier, 505
F.3d 389, 391-92 (5th Cir. 2007). Hernandez-Archila notes that there is a
circuit split on the issue whether the failure to object to the reasonableness of
a sentence requires plain error review, and he raises the issue to preserve it
for further review.
To demonstrate plain error, Hernandez-Archila must show a forfeited
error that is clear or obvious and that affects his substantial rights. Puckett
v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing, we
have the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
Because the sentences fall within their respective guidelines ranges,
they are entitled to a presumption of reasonableness.

See United States

v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009); United States v. Lopez-Velasquez,
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.
*

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526 F.3d 804, 809 (5th Cir. 2008). Hernandez-Archila argues that the sentence
imposed for his illegal reentry offense should not be accorded a presumption of
reasonableness because the applicable Guideline, U.S.S.G. § 2L1.2, is not
empirically based. However, he concedes that his argument is foreclosed. See
United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); United States
v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009). He raises the
issue to preserve it for further review.
In previous cases, we have rejected several of the arguments that
Hernandez-Archila raises on appeal. We have not been persuaded by the
contention that § 2L1.2’s lack of an empirical foundation necessarily renders
its application unreasonable. See Mondragon-Santiago, 564 F.3d at 366-67.
Nor have we been persuaded that the offense of illegal reentry is treated too
harshly under § 2L1.2 because it is in essence an international trespass. See
United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008). We have
rejected the contention that § 2L1.2’s double-counting of a defendant’s criminal
history necessarily renders a sentence unreasonable. See Duarte, 569 F.3d at
529-31. Additionally, Hernandez-Archila’s challenge to the district court’s
decision to run his revocation sentence consecutively to his illegal reentry
sentence is unpersuasive given that the Sentencing Guidelines recommend
that a revocation sentence of imprisonment be imposed to run consecutively to
any sentence of imprisonment that the defendant is serving. See U.S.S.G.
§ 7B1.3(f), p.s.
Further, the record reflects that the district court considered, but
rejected, Hernandez-Archila’s argument that his desire to reunite with his
family in the United States, and especially his concern for his ill mother,
warranted leniency. Hernandez-Archila’s contention that his benign motives
for returning to the United States warranted a lesser sentence is unavailing.
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See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
Hernandez-Archila’s arguments amount to a request for this court to reweigh
the sentencing factors, which we will not do. See United States v. McElwee,
646 F.3d 328, 344 (5th Cir. 2011).
Hernandez-Archila has not shown that the district court failed to
consider any significant factors, gave undue weight to any improper factors, or
clearly erred in balancing the sentencing factors; thus, he has not rebutted the
presumption of reasonableness. See Cooks, 589 F.3d at 186. Accordingly, the
judgments of the district court are AFFIRMED.

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