United States v. Armando Lopez-Hernandez

Filing

PER CURIAM OPINION FILED - THE COURT: William Jay Riley, Steven M. Colloton and Bobby E. Shepherd (UNPUBLISHED) [4435392] [15-3072]

United States Court of Appeals
For the Eighth Circuit
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No. 15-3072
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Armando Lopez-Hernandez,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: May 31, 2016
Filed: August 9, 2016
[Unpublished]
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Before RILEY, Chief Judge, COLLOTON and SHEPHERD, Circuit Judges.
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PER CURIAM.
Armando Lopez-Hernandez pleaded guilty to illegally reentering the United
States after a prior removal, in violation of 8 U.S.C. § 1326(a), (b)(2). The district

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court1 sentenced Lopez-Hernandez to 57 months’ imprisonment. On appeal, LopezHernandez challenges the substantive reasonableness of his sentence, and we affirm.
On August 15, 2014, Immigration and Customs Enforcement agents found
Lopez-Hernandez at a detention center in Minneapolis, where he was in custody after
an arrest for domestic assault. The agents determined that Lopez-Hernandez was a
native and citizen of Mexico and that he had no lawful status in the United States.
Lopez-Hernandez ultimately pleaded guilty to the illegal reentry charge pursuant to
a plea agreement in which he stipulated that the applicable advisory sentencing range
was 57 to 71 months in prison.
At sentencing, Lopez-Hernandez asserted that he reentered illegally because his
daughter was in a serious accident, argued that his reason for reentering was a
mitigating circumstance, and requested a sentence of 36 months’ imprisonment. The
district court was not persuaded and imposed a term of 57 months, at the bottom of
the advisory range.
On appeal, Lopez-Hernandez argues that his sentence is greater than necessary
because the court did not give sufficient weight to the reason for his reentry and the
nonviolent nature of his offense. He asserts that the district court’s silence on these
points shows that the court did not adequately weigh his concerns. We review the
substantive reasonableness of a sentence under a deferential abuse-of-discretion
standard, Gall v. United States, 552 U.S. 38, 41 (2007), and we presume that a
sentence imposed within the advisory guideline range is reasonable. United States v.
Paulino-Duarte, 670 F.3d 842, 844 (8th Cir. 2012); see Rita v. United States, 551 U.S.
338, 347 (2007).

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The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
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The district court’s selection of a term of 57 months’ imprisonment was not
unreasonable. The court heard and considered Lopez-Hernandez’s statement that he
entered the United States illegally in 2014 because of his injured daughter. See United
States v. Keating, 579 F.3d 891, 893-94 (8th Cir. 2009). But while Lopez-Hernandez
cited his daughter’s severe injuries from an accident as his reason for reentry, he
admitted that he remained in the United States even after his daughter was released
from the hospital and her condition improved. Indeed, Lopez-Hernandez
acknowledged that he moved from Washington State, where his daughter was
hospitalized, to Minnesota and obtained a job there after she recovered. Likewise,
although Lopez-Hernandez’s crime was nonviolent, his criminal history showed that
he had been previously deported three times and committed the same offense of illegal
reentry once before.
The district court has wide discretion in weighing the 18 U.S.C. § 3553(a)
factors and may assign some factors greater weight than others in imposing an
appropriate sentence. See United States v. San-Miguel, 634 F.3d 471, 476 (8th Cir.
2011). And the district court is not required to provide a “mechanical recitation” of
the § 3553(a) factors, so long as it actually considered them. United States v. Walking
Eagle, 553 F.3d 654, 659 (8th Cir. 2009). In view of Lopez-Hernandez’s offense
conduct and history, we see no abuse of discretion in the court’s decision to sentence
him at the bottom of the advisory range.
The judgment of the district court is affirmed.
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