USA v. Jacobo Heide-Kehler, No. 09-50176 (5th Cir. 2009)
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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-50176 Conference Calendar December 15, 2009 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JACOBO HEIDE-KEHLER, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:08-CR-2847-1 Before KING, JOLLY, and SOUTHWICK, Circuit Judges. PER CURIAM:* The district court sentenced Jacobo Heide-Kehler to serve 46 months in prison and a three-year term of supervised release following Heide-Kehler s conviction of one count of attempted illegal reentry into the United States. In this appeal, Heide-Kehler challenges his sentence, which was within the applicable guidelines range, as being too severe. He argues that the pertinent Guideline, U.S.S.G. § 2L1.2, improperly double counted his prior conviction and * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. No. 09-50176 that the district court did not properly weigh the sentencing factors given in 18 U.S.C. § 3553(a). Following United States v. Booker, 543 U.S. 220 (2005), we review sentences for reasonableness in light of the sentencing factors in § 3553(a). United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). Pursuant to Gall v. United States, 552 U.S. 38 (2007), we engage in a bifurcated review of the sentence imposed by the district court. United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). First, we consider whether the district court committed a significant procedural error. Id. at 752-53. If there is no such error, we then review the substantive reasonableness of the sentence imposed for an abuse of discretion. Id. at 751-53. We have previously 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, 130 S. Ct. 378 (2009). Heide-Kehler s double counting argument is thus unavailing. Heide-Kehler s arguments concerning the district court s balancing of the § 3553(a) factors amount to a disagreement with the district court s weighing of these factors and the appropriateness of his within-guidelines sentence. He has not shown that his sentence was either procedurally or substantively unreasonable, nor has he rebutted the presumption of reasonableness that attaches to his within-guidelines sentence. See United States v. Armstrong, 550 F.3d 382, 405 (5th Cir. 2008), cert. denied, 130 S. Ct. 54 (2009); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). The judgment of the district court is AFFIRMED. 2
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