United States v. Adolfo Hernandez-Gonzales , 459 F. App'x 410 ( 2012 )

Case: 11-10455 Document: 00511739168 Page: 1 Date Filed: 01/27/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 27, 2012
No. 11-10455
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ADOLFO HERNANDEZ-GONZALES,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:10-CR-198-1
Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Adolfo Hernandez-Gonzales pleaded guilty to one
count of illegal presence in the United States after deportation, a violation of 8
U.S.C. § 1326. At sentencing, the district court varied upwards from the
calculated guidelines range and sentenced Hernandez-Gonzales to 60 months of
imprisonment. Hernandez-Gonzales contends that the district court
procedurally erred by failing to point to sufficient evidence or make a reasoned
analysis to support its choice of an above-guidelines sentence.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10455 Document: 00511739168 Page: 2 Date Filed: 01/27/2012
No. 11-10455
As an initial matter, we note that the 60 month sentence imposed
constitutes an upward variance from the Guidelines. See United States v.
Brantley, 537 F.3d 347, 349 (5th Cir. 2008). Second, we need not determine
whether Hernandez-Gonzales properly preserved this issue in the district court
because, as explained below, the sentence is reasonable under either the plain-
error or abuse-of-discretion standard. See United States v. Rodriguez, 523 F.3d
519, 525 (5th Cir. 2008).
When imposing a non-guidelines sentence, “the district court must more
thoroughly articulate its reasons.” United States v. Smith, 440 F.3d 704, 707
(5th Cir. 2006). “These reasons should be fact-specific and consistent with the
sentencing factors enumerated in [18 U.S.C. §] 3553(a).” Id. We conclude that
the district court’s oral and written statements sufficiently explain that the
sentence was based on its evaluation of the § 3553(a) sentencing factors,
particularly Hernandez-Gonzales’s criminal history and characteristics, as well
as the need for the sentence imposed to promote his respect for the law, to afford
adequate deterrence to any future criminal conduct, and to protect the public
from further crimes he might commit. See § 3553(a)(1), (a)(2)(A)-(C); Smith, 440
F.3d at 707-08.
The judgment of the district court is AFFIRMED.
2