United States v. Contreras-Hernandez , 290 F. App'x 721 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 22, 2008
No. 08-10141
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE CONTRERAS-HERNANDEZ
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:07-CR-185-ALL
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Jose Contreras-Hernandez appeals his 56-month sentence imposed after
he pleaded guilty to illegally reentering the United States, in violation of 8
U.S.C. § 1326. He has filed a motion to supplement the record with his
sentencing memorandum. The motion to supplement is granted.
Contreras-Hernandez argues that his sentence is unreasonable because
the district court considered his arrest record when determining the point within
the advisory sentencing guidelines range that he should be sentenced.
*
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should not be published and is not precedent except under the limited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.
No. 08-10141
Contreras argues that his general objection to the unreasonableness of his
sentence preserved this argument.
To avoid plain-error review, an appellant “must raise a claim of error with
the district court in such a manner so that the district court may correct itself
and thus, obviate the need for our review.” United States v. Rodriguez, 15 F.3d
408, 414 (5th Cir. 1994) (internal quotation marks and citations omitted); see
United States v. Hernandez-Martinez, 485 F.3d 270, 272 (5th Cir.), cert. denied,
128 S. Ct. 325 (2007). Contreras’s objection to the reasonableness of his sentence
did not sufficiently preserve the argument that he now asserts; as a result, plain
error review applies. See Hernandez-Martinez, 485 F.3d at 273. To establish
plain error, a defendant must demonstrate error that is clear and obvious and
that affects his substantial rights; then we may exercise discretion to correct the
forfeited error if it “seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” Id. at 273.
The district court did not plainly err in sentencing Contreras. The record
does not demonstrate that the district court relied on Contreras’s prior arrests
in fashioning his sentence. Moreover, Contreras fails to present any evidence to
rebut the presumption of reasonableness attached to his within-guidelines
sentence. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); Rita v.
United States, 127 S. Ct. 2456, 2462-65 (2007). The judgment of the district
court is affirmed.
AFFIRMED; MOTION TO SUPPLEMENT GRANTED.
2