United States v. Alexander Herrera-Itzep

Court Case Details
Court Case Opinion

Case: 11-51118 Document: 00511960197 Page: 1 Date Filed: 08/17/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

F I L E D

August 17, 2012

No. 11-51118

Summary Calendar

Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ALEXANDER HERRERA-ITZEP,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:10-CR-1618-1

Before WIENER, ELROD, and GRAVES, Circuit Judges.

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PER CURIAM:

Alexander Herrera-Itzep appeals the 55-month within-guidelines sentence

he received following his guilty plea to illegal reentry into the United States

after deportation. Herrera-Itzep argues that his sentence is greater than

necessary to meet the sentencing goals of 18 U.S.C. § 3553(a). He specifically

contends that the guidelines sentencing range was too severe because the

district court (1) gave too much weight to a previous conviction for aggravated

assault with intent to commit rape, (2) did not consider the mitigating

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Pursuant to 5

C

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R.

47.5, the court has determined that this opinion should not

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be published and is not precedent except under the limited circumstances set forth in 5

C

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TH

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R.

47.5.4.

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No. 11-51118

circumstances surrounding the aggravated assault conviction, and (3) did not

consider his benign motive for illegally reentering the country. He further

contends that his sentence is not entitled to a presumption of reasonableness

because the illegal reentry guideline, U.S.S.G. § 2L1.2, is not empirically based.

Generally, we review sentences for reasonableness in light of the

sentencing factors in § 3553(a). United States v. Mondragon-Santiago, 564 F.3d

357, 360 (5th Cir. 2009). First, we consider whether the district court committed

a significant procedural error. Gall v. United States, 552 U.S. 38, 49-51 (2007).

If there is no error or the error is harmless, we review the substantive

reasonableness of the sentence imposed for an abuse of discretion. Id. at 51;

United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009). However,

because Herrera-Itzep did not raise his substantive reasonableness argument

in the district court, we review for plain error only. See United States v. Peltier,

505 F.3d 389, 392 (5th Cir. 2007).

When reviewing the reasonableness of a sentence within a properly

calculated guidelines range, we generally will infer that the district court

considered the sentencing factors set forth in the Sentencing Guidelines and

§ 3353(a). United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). The record

reflects that the district court expressly considered the relevant § 3553(a) factors

as well as Herrera-Itzep’s arguments for mitigating his sentence but expressly

overruled his arguments and concluded that a within-guidelines sentence was

“appropriate” considering the circumstances of the case. See United States v.

Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008). Accordingly, we decline Herrera-

Itzep’s invitation to reweigh the § 3553(a) factors because “the sentencing judge

is in a superior position to find facts and judge their import under § 3553(a) with

respect to a particular defendant.” United States v. Campos-Maldonado, 531

F.3d 337, 339 (5th Cir. 2008).

As he concedes, Herrera-Itzep’s empirical data argument is foreclosed by

this court’s precedent. See United States v. Duarte, 569 F.3d 528, 529-31 (5th

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No. 11-51118

Cir. 2009); Mondragon-Santiago, 564 F.3d at 366-67 n.7. Furthermore, Herrera-

Itzep’s sentence, which is near the top of the guidelines range, is presumed

reasonable. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 766 (5th Cir.

2008). His general disagreement with the propriety of his sentence and the

district court’s weighing of the § 3553(a) factors are insufficient to rebut the

presumption of reasonableness that attaches to a within-guidelines sentence.

See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010); United States v.

Cooks, 589 F.3d 173, 186 (5th Cir. 2009).

Herrera-Itzep has not demonstrated that the district court plainly erred

by sentencing him to a within-guidelines 55-month prison term. See Gall, 552

U.S. at 51; Peltier, 505 F.3d at 392. Accordingly, the judgment of the district

court is AFFIRMED.

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