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United States v. Jose Hernandez, 05-1693 (2005)

Court: Court of Appeals for the Eighth Circuit Number: 05-1693 Visitors: 39
Filed: Oct. 12, 2005
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 05-1693 _ United States of America, * * Appellee, * * v. * Appeal from the United States * District Court for the Jose Isaac Hernandez, also known as * Eastern District of Missouri. Felipe Mazahua, also known as * Elisio Mejia-Rosario, * [UNPUBLISHED] * Appellant. * _ Submitted: October 7, 2005 Filed: October 12, 2005 _ Before MURPHY, COLLOTON, and BENTON, Circuit Judges. _ PER CURIAM. Jose Hernandez pleaded guilty to illegal reentry. S
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                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-1693
                                   ___________

United States of America,             *
                                      *
             Appellee,                *
                                      *
       v.                             * Appeal from the United States
                                      * District Court for the
Jose Isaac Hernandez, also known as   * Eastern District of Missouri.
Felipe Mazahua, also known as         *
Elisio Mejia-Rosario,                 * [UNPUBLISHED]
                                      *
             Appellant.               *
                                 ___________

                             Submitted: October 7, 2005
                                Filed: October 12, 2005
                                 ___________

Before MURPHY, COLLOTON, and BENTON, Circuit Judges.
                          ___________

PER CURIAM.

       Jose Hernandez pleaded guilty to illegal reentry. See 8 U.S.C. § 1326(a),
(b)(2). His offense level under the Guidelines was enhanced by 16 levels because of
his prior deportation after a drug-trafficking conviction for which the sentence was
longer than 13 months. Hernandez objected to this enhancement as being too severe,
and moved for a downward departure under U.S.S.G. § 5K2.0 for the same reason.
Viewing the Guidelines as advisory and stating that it would consider the sentencing
factors in 18 U.S.C. § 3553(a), the district court1 overruled the objection, finding that
the plain language of the Guidelines made the enhancement appropriate, and denied
the departure motion. The court sentenced Hernandez to 70 months imprisonment
and 2 years supervised release. Hernandez appeals, arguing that the district court
relied too heavily on the Guidelines range without adequately considering the other
section 3553(a) factors, and that his sentence was unreasonable because it overstated
the seriousness of his prior drug convictions.

       We reject these arguments. The sentencing complied with United States v.
Booker, 
125 S. Ct. 738
(2005), as the court properly treated the Guidelines as
advisory, determined that a departure was inappropriate, and considered the
sentencing factors in section 3553(a) before giving a Guidelines sentence. See United
States v. Haack, 
403 F.3d 997
, 1002-03 (8th Cir. 2005) (after Booker, district court
must first determine appropriate Guidelines range, and then decide whether
traditional departure is appropriate under Part K and/or U.S.S.G. § 4A1.3 of
Guidelines, to arrive at Guidelines sentence; court must then consider all other
sentencing factors in § 3553(a) to determine whether to impose Guidelines sentence
or non-Guidelines sentence), petition for cert. filed, (U.S. July 14, 2005) (No. 05-
5652). We also conclude that the sentence was not unreasonable.

      Accordingly, we affirm.
                     ______________________________




      1
       The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.

                                          -2-

Source:  CourtListener

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