Case: 10-50246 Document: 00511325566 Page: 1 Date Filed: 12/17/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 17, 2010
                                     No. 10-50246
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ANTONIO GONZALEZ-HERNANDEZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:09-CR-256-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Antonio Gonzalez-Hernandez appeals his within-guidelines sentence
imposed upon his conviction for illegal reentry. See 8 U.S.C. § 1326. He argues
that his 78-month sentence is unreasonable because it is greater than necessary
to effectuate the sentencing goals of 18 U.S.C. § 3553(a). He argues that the 16-
level enhancement required by the illegal reentry guideline overstated the risk
of recidivism and the risk of danger he poses to the community and greatly
overstated the seriousness of his offense. He argues further that his guideline

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-50246 Document: 00511325566 Page: 2 Date Filed: 12/17/2010

                                 No. 10-50246

range of imprisonment failed to account for a childhood during which his parents
died when he was very young.
      At sentencing, the district court found that the Guidelines were adequate
and that a fair and reasonable sentence could be achieved with a sentence within
the advisory range. The district court stated that even if it did not choose to
follow the Guidelines, it would still find 78 months to be an adequate sentence
given Gonzalez’s “grossly undercounted criminal history.” Gonzalez had 30 prior
convictions for which he received no criminal history points because 29 of them
were too old and one was a non-countable misdemeanor. The district court also
rejected Gonzalez’s argument that his sentence did not reflect his difficult
childhood, noting that under the Guidelines, family history is not relevant. The
district court found that Gonzalez’s childhood did not justify a sentence below
the advisory guideline range.
      The district court gave sufficient reasons for imposing a within-guidelines
sentence. See Rita v. United States, 

, 356 (2007). Gonzalez has not
rebutted the presumption of reasonableness applicable to his within-guidelines
sentence. See 

Therefore, he has not shown that the district court
abused its discretion in imposing a sentence within the applicable guidelines
range. See Gall v. United States, 

, 46, 51 (2007).
      AFFIRMED.




                                       2