United States v. Rafael Hernandez-Perez , 521 F. App'x 345 ( 2013 )


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  •      Case: 12-50833       Document: 00512258923         Page: 1     Date Filed: 05/31/2013
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    May 31, 2013
    No. 12-50833
    Summary Calendar                        Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee
    v.
    RAFAEL HERNANDEZ-PEREZ,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 3:12-CR-929-1
    Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
    PER CURIAM:*
    Pursuant to his guilty plea, Rafael Hernandez-Perez was convicted of
    illegal reentry following removal from the United States and received, inter alia,
    24 months’ imprisonment and three years’ supervised release. Contesting only
    the supervised release, Hernandez contends his sentence was procedurally and
    substantively unreasonable because the district court did not consider Guideline
    § 5D1.1(c) (imposition of supervised release ordinarily not favored for person
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50833     Document: 00512258923       Page: 2   Date Filed: 05/31/2013
    No. 12-50833
    likely to be deported), and it failed to explicitly find the need for an “added
    measure of deterrence”, as recommended by § 5D1.1(c)’s commentary.
    Although post-Booker, the Sentencing Guidelines are advisory only, and
    a properly preserved objection to an ultimate sentence is reviewed for
    reasonableness under an abuse-of-discretion standard, the district court must
    still properly calculate the Guideline-sentencing range for use in deciding on the
    sentence to impose. Gall v. United States, 
    552 U.S. 38
    , 51 (2007). In that respect,
    for issues preserved in district court, its application of the Guidelines is reviewed
    de novo; its factual findings, only for clear error. E.g., United States v. Cisneros-
    Gutierrez, 
    517 F.3d 751
    , 764 (5th Cir. 2008); United States v. Villegas, 
    404 F.3d 355
    , 359 (5th Cir. 2005).
    As he concedes, Hernandez failed, however, to present in district court his
    contentions regarding supervised release; therefore, review is only for plain
    error. E.g., United States v. Dominguez-Alvarado, 
    695 F.3d 324
    , 327 (5th Cir.
    2012). For reversible plain error, Hernandez must show a clear or obvious error
    that affected his substantial rights. Puckett v. United States, 
    556 U.S. 129
    , 135
    (2009). He fails to do so.
    At sentencing, the district court stated its concern that, because
    Hernandez’ children were United States citizens, and the United States was “the
    only place that [he had] known”, Hernandez would be tempted to return.
    Accordingly, it cautioned Hernandez that returning illegally to the United States
    would result in additional criminal penalties. Despite not explicitly stating the
    particular facts of Hernandez’ case warranted supervised release, the court’s
    explanation was adequate to support its imposition. E.g., United States v.
    Cancino-Trinidad, 
    710 F.3d 601
    , 607 (5th Cir. 2013) (imposition of supervised
    release not plain error where court implicitly considered its deterrent effect); see
    also Dominguez-Alvarado, 695 F.3d at 330 (no plain error where court made
    2
    Case: 12-50833    Document: 00512258923    Page: 3   Date Filed: 05/31/2013
    No. 12-50833
    particularized statements explaining why sentence – which included supervised
    release – was necessary to deter future criminal conduct and illegal reentry).
    AFFIRMED.
    3
    

Document Info

Docket Number: 12-50833

Citation Numbers: 521 F. App'x 345

Judges: Barksdale, Clement, Graves, Per Curiam

Filed Date: 5/31/2013

Precedential Status: Non-Precedential

Modified Date: 8/6/2023