USA v. Elvis Hernandez-Alvares, No. 12-50753 (5th Cir. 2013)
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Case: 12-50753 Document: 00512225166 Page: 1 Date Filed: 04/30/2013 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 12-50753 Summary Calendar April 30, 2013 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee v. ELVIS OCTAVIO HERNANDEZ-ALVARES, Defendant - Appellant Appeals from the United States District Court for the Western District of Texas USDC No. 2:11-CR-1324-1 Before DAVIS, BARKSDALE, and ELROD, Circuit Judges. PER CURIAM:* Elvis Octavio Hernandez-Alvares challenges his 46-month imprisonment sentence imposed after pleading guilty to illegally reentering the United States after deportation. He contends the sentence is greater than necessary to satisfy the sentencing factors of 18 U.S.C. § 3553(a) because: the advisory Sentencing Guidelines overstate the seriousness of his instant and prior offenses; and the court gave inadequate consideration to his personal circumstances and benign motive for reentry. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 12-50753 Document: 00512225166 Page: 2 Date Filed: 04/30/2013 No. 12-50753 Although post-Booker, the Sentencing Guidelines are advisory only, and a properly preserved objection to an ultimate sentence is reviewed for reasonableness under an abuse-of-discretion standard, the district court must still properly calculate the Guideline-sentencing range for use in deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 48-51 (2007). In that respect, for issues preserved in district court, its application of the Guidelines is reviewed de novo; its factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). Hernandez essentially asks to substitute his assessment of the relevant sentencing factors for the district court s thoroughly reasoned assessment, which is contrary to the deferential review dictated by Gall and Rita v. United States, 551 U.S. 338, 351 (2007). (Hernandez concedes his challenge to Guideline § 2L1.2 as lacking an empirical basis is foreclosed by our precedent; he presents this issue only to preserve it for possible further review.) AFFIRMED. 2
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