United States v. Hernandez-Herrera, 062011 FED5, 09-40894

Docket Nº:09-40894, 09-40900
Opinion Judge:PER CURIAM
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GERONIMO HERNANDEZ-HERRERA, Defendant-Appellant.
Judge Panel:Before SMITH, DeMOSS, and OWEN, Circuit Judges.
Case Date:June 20, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit




Nos. 09-40894, 09-40900

United States Court of Appeals, Fifth Circuit

June 20, 2011

Appeal from the United States District Court for the Southern District of Texas USDC Nos. 1:03-CR-00431, 1:09-CR-678-1.

Before SMITH, DeMOSS, and OWEN, Circuit Judges.


Geronimo Hernandez-Herrera appeals from the sentence imposed as a consequence of his conviction under 8 U.S.C. § 1326(a) and (b)(1) for illegally reentering this country after he had been previously deported as an alien following a conviction for a felony offense. He also appeals the sentence imposed following the revocation of his supervised release related to a prior illegal reentry conviction. He argues that the sentences are procedurally unreasonable because the district court failed to explain its sentencing decision adequately and that the sentences are substantively unreasonable because they are greater than necessary in light of the 18 U.S.C. § 3553(a) sentencing factors. We affirm.


In 2003, Hernandez-Herrera pleaded guilty to the crime of illegal reentry by a previously deported alien following a conviction for an aggravated felony offense, in violation of 8 U.S.C. § 1326(a) and (b)(2). He was sentenced to a term of imprisonment of sixty-three months, to be followed by a three-year term of supervised release. He began his term of supervised release in 2007, at which time he was also deported to Mexico.

Eighteen months later, in 2009, Hernandez-Herrera was arrested in Brownsville, Texas. He subsequently was charged with the crime of illegal reentry of a previously deported alien following a conviction for a felony offense, in violation of 8 U.S.C. § 1326(a) and (b)(1). Additionally, the United States Probation Office, claiming that Hernandez-Herrera's 2009 illegal reentry violated the terms of his supervised release, filed a petition to revoke his supervised release.

Hernandez-Herrera pleaded guilty to the 2009 illegal reentry charge, and the district court ordered the United States Probation Office to prepare a presentence investigation report (PSR). The PSR assigned Hernandez-Herrera a base offense level of eight for the illegal reentry offense. He then received a sixteen-level enhancement, under § 2L1.2(b)(1)(A) of the U.S. Sentencing Guidelines Manual (Guidelines), for a prior felony drug trafficking offense and a three-level downward adjustment for acceptance of responsibility, leaving him with a total offense level of 21. After combining his offense level with his category V criminal history, Hernandez-Herrera's applicable Guidelines range for the 2009 illegal reentry offense was seventy to eighty-seven months of imprisonment. The PSR also included the Probation Office's determination that it had "not identified any authorized factors concerning the offense or the offender that would warrant departure from the advisory guideline range."

Hernandez-Herrera did not object to the PSR, but he did file a motion for a variance or downward departure in which he raised three arguments. First, he noted that his teenage son was suffering from mental and behavioral problems and was not attending school, and that a state juvenile court had determined that his son was in need of rehabilitation after it found that the son had engaged in delinquent conduct. He claimed that he had reentered the United States in order to help his son. Second, he requested a departure under § 5K2.11 of the Guidelines, which provides that a reduced sentence may be appropriate when a defendant commits a crime in order to avoid a perceived greater harm. Finally, he argued that his Guidelines sentence was greater than necessary to satisfy the 18 U.S.C. § 3553(a) factors.

The district court subsequently held a revocation and sentencing hearing during which it considered both the Probation Office's petition to revoke Hernandez-Herrera's supervised release with respect to his 2003 illegal reentry conviction and his sentence for his 2009 illegal reentry conviction. The district court began the hearing by obtaining Hernandez-Herrera's plea with respect to the Probation Office's allegation that his conduct had violated the terms of his supervised release; he pleaded true to those allegations. The district court then proceeded to hear the parties' arguments as to Hernandez-Herrera's sentence for his new reentry conviction.

Hernandez-Herrera's counsel began by introducing the state juvenile court records for Hernandez-Herrera's son. Counsel submitted that Hernandez-Herrera's son was not attending school, was suicidal, and was beyond the control of the boy's mother. Counsel argued that Hernandez-Herrera "felt an overwhelming frustration that he had to do something for his son, so he crossed." Counsel also noted that Hernandez-Herrera stopped drinking in 2003, had not been drinking since then, and had "been working pretty hard across doing what he could to help his family." Counsel also reiterated Hernandez-Herrera's request for a § 5K2.11 departure, arguing that he reentered the United States "in order to prevent a greater harm, which he believed was the absolute risk to his son." Hernandez-Herrera ultimately requested "that any sentence on the revocation be run concurrent" and "that the Court consider that a sentence with perhaps 12 months even on the reentry be sufficient." After hearing counsel's arguments, the district court engaged in the following exchange with counsel:

THE COURT: Well, Mr. Wilde, tell me, what would be your client's proposal should I grant a variance and-I mean, there still has to be the issue of attention that this young man needs. Is he going to try to come back again? I mean, is that the only alternative that he and his spouse feel is going to make a difference for this boy, or is it going to be more of the same or what?

MR. WILDE: I wish I had the answer to that, Your Honor. I think it's an impossible situation for the Court, for Mr. Hernandez, for his wife, and especially for his son and daughters. It's a tragic, to me a tragic and impossible situation. Maybe Mr. Hernandez could address that better than I could, Your Honor. I wouldn't want to be in Mr. Hernandez' shoes, I mean, his position, having to face this. I think it's a tragedy, Your Honor. I think Mr. Hernandez could probably address that better than I could, what he could expect to do for his son at this point.

For its part, the Government opposed any departure or variance from the Guidelines range. The Government argued that Hernandez-Herrera's situation did not differ significantly from the situations confronting many defendants who commit illegal reentries. The Government also suggested that his son's troubles might be attributable to Hernandez-Herrera's own conduct, insofar as he served as a poor role model for the boy. The Government ultimately requested a seventy-eight month sentence for Hernandez-Herrera's 2009 illegal reentry conviction and a consecutive eighteen-month sentence for his supervised release violation.

After hearing the Government's arguments, the district court made the following observation:

THE COURT: All right. Well, the fact is, the bottom line, anybody who is under the supervision of the Court is to if ordered or required to refrain from associating with people who are committing crimes, you know, if his father were here his father...

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