United States v. Hernandez

*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opinion should not be published and is not precedent except under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.
United States Court of Appeals
Fifth Circuit
F I L E D
March 19, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-51119
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUILLERMO HERNANDEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-891-ALL
Before GARWOOD, CLEMENT and PRADO, Circuit Judges.
PER CURIAM:*
In May 2006, Guillermo Hernandez pleaded guilty to illegal
reentry after deportation and in August 2006 was sentenced to 46
months of imprisonment, three years of supervised release, a $500
fine, and a $100 special assessment.
Hernandez argues for the first time on appeal that his
sentence was unreasonable because the district court employed

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1 Hernandez did file a motion for downward departure which
the district court denied, but that motion was clearly based only
on an asserted ground (that Hernandez had, through his lawyer,
unsuccessfully sought permission to re-enter before deciding to re-
enter without permission) not reurged on appeal and wholly
unrelated to the now complained of double counting. Indeed,
Hernandez expressly agreed before the district court that the PSR,
which the district court accepted (and to which Hernandez made no
objection), correctly identified the applicable advisory guideline
sentencing range as 46 to 57 months’ confinement (and two to three
years supervised released and fine). And, the district court
clearly treated the guidelines as advisory only in accordance with
United States v. Booker, 543 U.S. 220 (2005).
2
impermissible double counting and thus improperly calculated his
guideline range when it increased both his offense level and his
criminal history points based on the same prior alien smuggling
conviction.1 Citing United States v. Henry, 288 F.3d 657 (5th Cir.
2002), Hernandez further contends that his criminal history should
not have been increased based on his prior alien smuggling
conviction because it was an element of the illegal reentry
offense.
The district court did not plainly err in sentencing Hernandez
because the Guidelines do not prohibit such double counting,
because Henry is distinguishable from the instant case, and because
this court has approved of such double counting under similar
circumstances concerning U.S.S.G. § 2K1.2. See U.S.S.G. § 2L1.2,
comment. (n.6); Henry, 288 F.3d at 659, 664-65; United States v.
Gaytan, 74 F.3d 545, 560 (5th Cir. 1996); United States v. Hawkins,
69 F.3d 11, 14-15 (5th Cir. 1995). Furthermore, Hernandez’s double
counting argument fails to counter the rebuttable presumption that

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his properly calculated guideline sentence is reasonable. See
United States v. Alonzo, 435 F.3d 551, 554-55 (5th Cir. 2006).
Nothing in the record compels the conclusion that the sentence
imposed is unreasonable.
AFFIRMED.

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