USA v. Jose Hernandez-Calderon, No. 11-5210 (6th Cir. 2012)
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 12a0418n.06 FILED No. 11-5210 Apr 16, 2012 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE SANTOS HERNANDEZ-CALDERON, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) ) LEONARD GREEN, Clerk ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE Before: MARTIN, SUTTON, and KETHLEDGE, Circuit Judges. KETHLEDGE, Circuit Judge. Jose Hernandez-Calderon, a Mexican national, pled guilty to illegally reentering the United States after his deportation, in violation of 8 U.S.C. § 1326. The federal sentencing guidelines recommended a sentence of 37 to 46 months in prison, after including an enhancement for Hernandez-Calderon s 1992 felony conviction for aggravated sexual assault of a child under 14. See U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii) (Nov. 2010). The district court sentenced him to 37 months in prison, the low end of the guidelines range. HernandezCalderon now argues that his sentence is substantively unreasonable. We affirm. District courts have broad discretion to impose sentences within the statutory range, so we review Hernandez-Calderon s sentence only for reasonableness. United States v. Overmyer, 663 F.3d 862, 863 (6th Cir. 2011). We treat his within-guidelines sentence as presumptively reasonable. No. 11-5210 United States v. Hernandez-Calderon United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc). Hernandez-Calderon argues that his sentence is unreasonably long in light of the factors in 18 U.S.C. § 3553(a). See United States v. Tate, 516 F.3d 459, 469 (6th Cir. 2008) ( The touchstone for our review is whether the length of the sentence is reasonable in light of the § 3553(a) factors ). Hernandez-Calderon first argues that his sentence overstates the seriousness of his offense and his history and characteristics as an offender. See 18 U.S.C. § 3553(a)(1), (2)(A). He says that the district court should have varied from the guidelines because the enhancement for his prior violent felony did not account for the age of his prior crime or his subsequent lack of criminal activity. For support, he turns to a case from the Ninth Circuit, United States v. Amezcua-Vasquez, 567 F.3d 1050, 1056 (9th Cir. 2009), which held that a § 1326 offense is itself less serious when the offense that led to the defendant s deportation occurred many years ago. The Ninth Circuit s opinion in Amezcua-Vasquez has received mixed reviews. Compare United States v. Chavez-Suarez, 597 F.3d 1137, 1137 38 (10th Cir. 2010) (adopting the holding of Amezcua-Vasquez, but distinguishing it) with United States v. Rodriguez, 660 F.3d 231, 234 (5th Cir. 2011) (refusing to adopt Amezcua-Vasquez). In a prior unpublished opinion, we assumed without deciding that Amezcua-Vasquez correctly held that the age of a prior conviction is relevant to the reasonableness of a defendant s sentence even a sentence within the guidelines. See United States v. Brissett, 375 F. App x 473, 477 78 (6th Cir. 2010). We will make the same assumption, without deciding the question, here. The district court essentially gave Hernandez-Calderon the benefit of the rule of AmezcuaVasquez when it sentenced him. Specifically, the court noted that Hernandez-Calderon s prior felony -2- No. 11-5210 United States v. Hernandez-Calderon conviction was fifteen years old, that he had committed no other crimes (besides illegally re-entering the United States), and that this was his first § 1326 offense. The district court also found, however, that Hernandez-Calderon s prior conviction was one of the most serious prior convictions that the court had ever encountered in a § 1326 case. Hernandez-Calderon argues nonetheless that his case is indistinguishable from AmezcuaVasquez. There, the Ninth Circuit held that Amezcua-Vasquez s 52-month sentence was substantively unreasonable because his prior conviction was 25 years old. Id. at 1051 52. Hernandez-Calderon says that, based on the Ninth Circuit s reasoning, his sentence too was substantively unreasonable in light of the age of his prior conviction. But the cases are distinguishable on their facts. Sexually assaulting a 12-year-old is arguably, if not significantly, more serious than stabbing a rival gang member during a bar fight the crime for which AmezcuaVasquez was deported. Among other things, the victim in Hernandez-Calderon s prior offense was presumably less blameworthy than the victim in Amezcua-Vasquez s offense. Taking all of the circumstances into account, therefore, Hernandez-Calderon s sentence was not an abuse of discretion. Next, Hernandez-Calderon argues that he is entitled to a variance because the Sentencing Commission recently amended the guidelines to recommend lesser sentences for § 1326 defendants with older predicate convictions. See Guidelines Manual app. C, Amend. 754 (Nov. 2011) (decreasing the § 2L1.2(b)(1)(A) enhancement from 16 to 12 levels where the defendant s prior conviction does not receive criminal history points). But the Commission s ongoing effort to improve the guidelines does not show that its prior recommendations were unreasonable. -3- No. 11-5210 United States v. Hernandez-Calderon Hernandez-Calderon also argues that his § 1326 offense was not serious because it was nonviolent and victimless: He re-entered the United States after his deportation because he could not earn enough money in Mexico to support his family. But that does not distinguish him from thousands of other § 1326 defendants who are prosecuted every year. Congress decision to authorize up to 20 years in prison for Hernandez-Calderon s illegal re-entry with a prior aggravated felony reflects its view that his § 1326 offense is more serious than he would have us believe. See 8 U.S.C. § 1326(a), (b)(2). Moreover, Hernandez-Calderon s argument overlooks the need for his sentence to deter the commission of this offense. See 18 U.S.C. § 3553(a)(2)(B). So we reject this argument as well. Finally, Hernandez-Calderon argues that his sentence was greater than necessary to protect the public against his future crimes. See 18 U.S.C. § 3553(a)(2)(C). He contends that his family will move with him to Mexico once he is released from prison, and thus he will have no reason to return to the United States. The district court credited Hernandez-Calderon s intent not to return, but was skeptical that his family will accompany him to Mexico, given their well-established ties to the United States. (Hernandez-Calderon s children, in particular, have lived their entire lives here.) As a result, the court believed that he will face a strong temptation to return to this country. That judgment, and Hernandez-Calderon s sentence itself, were reasonable. The district court s judgment is affirmed. -4-
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