U.S. v. HERNANDEZ-CALVILLO, 358 Fed.Appx. 494 (5th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee v. Juan Carlos HERNANDEZ-CALVILLO, Defendant-Appellant.

No. 09-50304 Conference Calendar.United States Court of Appeals, Fifth Circuit.
December 15, 2009.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney’s Office, San Antonio, TX, for Plaintiff-Appellee.

Judy Fulmer Madewell, Henry Joseph Bemporad, Federal Public Defender, Federal Public Defender’s Office, San Antonio, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas, USDC No. 3:08-CR-3373-1.

Before KING, JOLLY, and SOUTHWICK, Circuit Judges.

PER CURIAM:[*]

[*] Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under sentencing factors. 18 U.S.C.A. § 3553(a) the limited circumstances set forth in 5TH CIR. R. 47.5.4.

Juan Carlos Hernandez-Calvillo (Hernandez) appeals the sentence imposed following his guilty plea to illegal reentry. He argues that his within-guidelines sentence was greater than necessary to satisfy the goals of 18 U.S.C. § 3553(a). Hernandez did not object to the substantive reasonableness of his sentence in the district court; therefore, our review is for plain error only. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).

Hernandez argues that U.S.S.G. § 2L1.2 improperly double counted his prior conviction. We have rejected the argument that a sentence imposed in accordance with § 2L1.2 is greater than necessary to meet § 3553(a)’s goals as a result of the alleged double counting inherent in that Guideline. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, ___ U.S. ___, 130 S.Ct. 378, 175 L.Ed.2d 231 (2009).

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Hernandez additionally argues that the guidelines range failed to reflect his personal history and characteristics, arguing that his pure motive for returning to the United States mitigates the seriousness of the offense. This argument is unavailing. Cf. United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.), cert. denied, U.S. ___, ___ 129 S.Ct. 624, 172 L.Ed.2d 617 (2008). The district court, which was in a superior position to apply the § 3553(a) factors, considered and rejected Hernandez’s argument. See United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.), cert. denied, ___ U.S. ___, 129 S.Ct. 328, 172 L.Ed.2d 236 (2008). The record reflects that the district court did not commit error, plain or otherwise, in determining that a sentence of 42 months of imprisonment would satisfy the sentencing objectives of § 3553(a).

AFFIRMED.