USA v. Ausencio Garcia-Herrera, No. 09-50534 (5th Cir. 2009)
Annotate this Case
Download PDF
IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-50534 Summary Calendar December 18, 2009 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. AUSENCIO GARCIA-HERRERA, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:08-CR-1140-1 Before KING, STEWART, and HAYNES, Circuit Judges. PER CURIAM:* Ausencio Garcia-Herrera appeals the 46-month prison sentence imposed by the district court after he pleaded guilty to illegal reentry following deportation after conviction of an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2). Garcia-Herrera argues that his sentence (1) is greater than necessary to meet the sentencing goals set forth in 18 U.S.C. § 3553(a) because it fails to adequately account for his circumstances and motives, and (2) is not entitled to the appellate presumption of reasonableness because the Guideline * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50534 upon which his sentence was based, U.S.S.G. § 2L1.2, is not supported by empirical data or national experience. Garcia-Herrera acknowledges that his argument regarding the § 2L1.2 Guideline is foreclosed in this circuit, indicating that he raised it merely to preserve it for future Supreme Court review. Because Garcia-Herrera s argument is foreclosed, we need not consider it further. See United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). Furthermore, Garcia-Herrera has not shown that the 46-month sentence imposed by the district court was unreasonable. Because Garcia-Herrera requested a below-guidelines sentence in the district court, our review is for abuse of discretion. Id. at 360. We review the district court s interpretation of the Sentencing Guidelines de novo and its factual findings for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Because Garcia-Herrera s 46-month sentence was within the properly calculated guideline range of 46 to 57 months, it is presumptively reasonable. See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008). reasonableness presumption. Garcia-Herrera has not rebutted the The record reflects that the district court considered Garcia-Herrera s arguments, the presentence report, and the appropriate § 3553(a) factors, including the nature and circumstances of the offense, the history and characteristics of Garcia-Herrera, and the need for the sentence imposed to promote respect for the law, deter future criminal conduct, and protect the public. For example, the district court considered the facts that Garcia-Herrera illegally returned to the United States during a previously imposed term of supervised release and that Garcia-Herrera had recently begun abusing powder cocaine. The district court also considered Garcia-Herrera s argument that he needed to support his family, which was also reflected in the letters submitted on Garcia-Herrera s behalf by his friends and family. Because 2 No. 09-50534 the district court considered the appropriate sentencing factors and articulated a reasoned basis for imposing the 46-month sentence, Garcia-Herrera has not established that the district court abused its discretion in the imposition of his sentence. See Campos-Maldonado, 531 F.3d at 338. AFFIRMED. 3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
