USA v. Noe Gonzalez Hernandez

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 16, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-10263
Non-Argument Calendar
________________________
D.C. Docket No. 4:10-cr-00041-RLV-WEJ-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NOE GONZALEZ HERNANDEZ,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 16, 2011)
Before PRYOR, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:

-- 1 of 3 --

Noe Gonzalez Hernandez appeals his sentence of 41 months of
imprisonment for reentering the United States illegally. 8 U.S.C. § 1326(a),
(b)(2). Hernandez argues that his sentence is unreasonable. We affirm.
The district court did not abuse its discretion when it sentenced Hernandez
at the low end of the guideline range. In 2003, Hernandez was convicted of
trafficking in cocaine and deported from the United States, and in 2010, agents
apprehended Hernandez in Georgia, where he had been residing for approximately
four years ostensibly to escape death threats that he had received in Mexico. The
district court “[took] into account the requirements of 18 U.S.C. § 3553(a)” and
reasonably determined that a sentence of 41 months of imprisonment, which is
well below the statutory maximum of 20 years, “[took] into account [Hernandez’s
personal] circumstances and offense and history and characteristics” yet would
“provide[] adequate punishment” and “deter[]” him from reentering the United
States illegally yet again. Hernandez argues that the 16-level enhancement of his
base offense level based on his conviction in 1998 for trafficking in cocaine base,
United States Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii), “is
inappropriate and unreasonable because there is no empirical or national evidence
supporting such an enhancement,” but the lack of such evidence does not require
2

-- 2 of 3 --

that the district court disregard the advisory guideline. See United States v.
Snipes, 611 F.3d 855, 870 (11th Cir. 2010). Hernandez’s sentence is reasonable.
We AFFIRM Hernandez’s sentence.
AFFIRMED.
3

-- 3 of 3 --