Submitted: October 17, 2016
from United States District Court for the Northern District
of Iowa - Sioux City
RILEY, Chief Judge, WOLLMAN and BENTON, Circuit Judges.
case is about whether Inmar Hernandez-Pineda's ten-year
sentence for illegally reentering the United States,
see 8 U.S.C. § 1326(a), (b)(2), was reasonable.
It is also, incidentally, about the dangers of running with
knives. On the legal issue, we hold the sentence was within
the district court's discretion. The second point speaks for
spring 2015, Hernandez-Pineda and Elim Escobar-Alvira tried
to hold up a bakery in Sioux City, Iowa. Escobar-Alvira
brought an unloaded sawed-off shotgun, Hernandez-Pineda
carried a butcher knife. Things did not go well. While a
bakery employee disarmed Escobar-Alvira and briefly wrestled
him to the ground, Hernandez-Pineda bolted. On his way out,
Hernandez-Pineda ran into the door and stabbed himself in the
stomach. By the time Escobar-Alvira got up, Hernandez-Pineda
was gone, along with their getaway van. Both perpetrators
were caught within an hour, and Hernandez-Pineda was taken to
the hospital for emergency surgery.
botched robbery brought Hernandez-Pineda, a citizen of El
Salvador who had been removed from the United States twice
before, to the attention of federal immigration authorities.
Hernandez-Pineda eventually pled guilty to unlawful reentry
in exchange for the government agreeing not to take a
position on whether his various sentences should run
concurrently or consecutively. He also admitted the reentry
and robbery were violations of the terms of his supervised
release for a 2013 illegal-reentry conviction.
combined sentencing and revocation hearing, the district
court acknowledged the uncontested United States Sentencing
Guidelines (Guidelines) advisory range for the illegal
reentry was 33 to 41 months. Because Hernandez-Pineda's
original removal had followed an "aggravated
felony" conviction-second-degree theft, for stealing a
van and driving to Las Vegas, see Iowa Code §
714.2(2)-the statutory maximum was twenty years. See
8 U.S.C. § 1326(b)(2). The government asked for half
that, presenting evidence of the circumstances of the
robbery, Hernandez-Pineda's gang membership, and the many
other crimes he had previously committed. Hernandez-Pineda
conceded "there are certainly aggravating factors in the
case, " but argued they were mitigated by other
considerations. He emphasized that he was brought to the
United States as a toddler and has known no other home,
virtually his entire family lives in Iowa, and he faced a
substantial risk of violence in El Salvador, all of which
arguably helped explain, if not justify, his decision to
return to the United States. He also pointed out that an Iowa
state court had already sentenced him to fifteen years on
counts arising out of the robbery itself, so he would be
serving a significant prison term regardless of how the
district court ruled in this case.
district court agreed with the government and varied upward
to 120 months, listing the following reasons:
The serious nature of the defendant's criminal conduct,
the escalating nature of the defendant's criminal
conduct, the repetitive nature of the defendant's
criminal conduct, the fact that he's been to prison, he
doesn't seem to have learned anything and gets out and
then commits an even more serious offense than any of the
offenses that caused him to go to prison.
district court also revoked Hernandez-Pineda's supervised
release and sentenced him to 24 months for the admitted
violations. The district court made half of each federal
sentence-that is, six years total-consecutive, with the other
halves to run concurrently with each other and the state
sentences. See 18 U.S.C. § 3584(a).
Hernandez-Pineda filed appeals from both sentences, which we
consolidated for review, see 28 U.S.C. § 1291
(appellate jurisdiction), yet Hernandez-Pineda now focuses on
the 120 months he received for the illegal
review sentences for abuse of discretion. See Gall v.
United States, 552 U.S. 38, 51 (2007). Hernandez-Pineda
argues the district court abused its discretion by either
failing to consider the factors that supported a shorter
sentence-namely "the young age at which [he] came to the
United States, the presence of his family in the United
States, and his lengthy state prison sentence"-or
committing a clear ...