United States of America v. Alejandro Herrera-Gonzalez, a/k/a Alejandro, a/k/a Alejandro Herrera, a/k/a…

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4269
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UNITED STATES OF AMERICA
v.
ALEJANDRO HERRERA-GONZALEZ, a/k/a
Alejandro, a/k/a Alejandro Herrera, a/k/a
Alejandro G. Herrera
Alejandro Herrera-Gonzalez, Appellant
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Crim. No. 1-08-cr-00278-001)
District Judge: Jerome B. Simandle
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Submitted Under Third Circuit L.A.R. 34.1(a)
DECEMBER 15, 2009
Before: SLOVITER, JORDAN and WEIS, Circuit Judges.
(Filed: December 31, 2009)
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Opinion
WEIS, Circuit Judge.
Defendant pled guilty to illegally re-entering the country five years after
being deported for his commission of criminal sexual contact. See 8 U.S.C. § 1326. The

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District Court sentenced him to 46 months imprisonment, the bottom of the Guideline
range. Defendant now contends that the Court erred in “focus[ing] almost exclusively
on” his conviction for the sex crime, for which he had already served time in prison, as
the main factor in calculating the sentence. We will affirm the sentence imposed.
In computing the Guideline range, the Court included a sixteen-level
enhancement to the base offense level because of the defendant’s previous conviction for
a felonious crime of violence. See U.S.S.G. § 2L1.2(b)(1)(A). That addition, combined
with a three-level decrease for the acceptance of responsibility, resulted in an adjusted
Guideline offense level of 21, which, when applied to the defendant’s criminal history
category of III, culminated in a range of 46-57 months imprisonment. In computing the
criminal history, the Court included a state conviction for failing to register as a sex
offender. That violation occurred after defendant re-entered this country.
The District Court reviewed the defendant’s mitigation claims in detail and
thoroughly explored the reasons for the Guideline calculations. The Court also gave
“meaningful consideration” to the factors in 18 U.S.C. § 3553. United States v. Starnes,
583 F.3d 196, 215 (3d Cir. 2009) (a procedurally reasonable sentence “reflect[s] a district
court’s meaningful consideration of the factors set forth at . . . § 3553(a)” (quoting United
States v. Lessner, 498 F.3d 185, 203 (3d Cir. 2007))). In addition, the Court noted that
defendant already had served six months in a state jail for failing to register as a sex
offender and, but for that, the sentence would have been higher than the 46 months

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imposed.
We are convinced that the District Court “committed no significant
procedural error in arriving at its [sentencing] decision,” nor did it impose a substantively
unreasonable term of imprisonment. Id. The Court painstakingly analyzed the case and
the arguments ably raised by defense counsel. We find no reversible error in the
defendant’s sentence.
We note further that defendant has raised a claim that the District Court
accepted his conviction under 8 U.S.C. § 1326(b)(2) by a preponderance of the evidence
in spite of the holding in Apprendi v. New Jersey, 530 U.S. 466 (2000). Defendant
candidly admits that he raises this point to preserve the issue should the Supreme Court
modify its holding in Almendarez-Torres v. United States, 523 U.S. 224 (1998). We
acknowledge the defendant’s preservation of the issue.
Accordingly, the judgment of the District Court will be affirmed.

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