USA v. Victor Alejo-Hernandez



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USA v. Victor Alejo-Hernandez Doc. 0 Case: 09-41009 Document: 00511180302 Page: 1 Date Filed: 07/21/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-41009 S u m m a r y Calendar July 21, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. V I C T O R ALEJO-HERNANDEZ, D e fe n d a n t -A p p e lla n t -----------------------c o n s o lid a t e d with: N o . 09-41023 S u m m a r y Calendar U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. V I C T O R ALEJO-HERNANDEZ, D e fe n d a n t -A p p e lla n t Case: 09-41009 Document: 00511180302 Page: 2 No. 09-41009 c/w No. 09-41023 Date Filed: 07/21/2010 A p p e a ls from the United States District Court fo r the Southern District of Texas U S D C No. 2:09-CR-501-1 U S D C No. 2:09-CR-738-1 B e fo r e JOLLY, WIENER, and ELROD, Circuit Judges. P E R CURIAM:* V ic t o r Alejo-Hernandez (Alejo) appeals following his guilty-plea conviction o f, and sentence for, illegal reentry and the concomitant revocation of his s u p e r v is e d release related to a prior conviction for illegal reentry. Alejo was s e n te n c e d to 93 months of imprisonment and three years of supervised release fo r the most recent illegal reentry conviction and a consecutive 24-month term o f imprisonment for violating his supervised release. Alejo argues that the d is t r ic t court failed to adequately explain why it rejected his arguments for a lo w e r sentence and credit for acceptance of responsibility and why it imposed the s t a t u t o r y maximum sentence for the supervised release violation. Alejo also a r g u e s that the 117-month total sentence was greater than necessary to achieve t h e sentencing goals of 18 U.S.C. 3553(a). S e n t e n c e s are reviewed for reasonableness under an abuse-of-discretion s t a n d a r d . United States v. Gall, 552 U.S. 38, 51 (2007). First, we must ensure t h a t the district court did not procedurally err by "failing to adequately explain t h e chosen sentence." Id. If the sentence is procedurally sound, we then review t h e substantive reasonableness of the sentence. Id. A presumption of United States v. r e a s o n a b le n e s s applies to a within-guidelines sentence. C a m p o s -M a ld o n a d o , 531 F.3d 337, 338 (5th Cir. 2008). We review revocation 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. * 2 Case: 09-41009 Document: 00511180302 Page: 3 No. 09-41009 c/w No. 09-41023 Date Filed: 07/21/2010 s e n te n c e s under "(a) both the `plainly unreasonable' and the Booker u n r e a s o n a b le n e s s standards of review . . . [and] (b) the more exacting Booker u n r e a s o n a b le n e s s standard." United States v. McKinney, 520 F.3d 435, 428 (5th C ir . 2008). B e c a u s e Alejo did not object to the adequacy of the district court's e x p l a n a t i o n for either sentence, his claims of procedural error are subject to p la in error review. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5 t h Cir.), cert. denied, 130 S. Ct. 192 (2009). Both sentences were within the g u id e lin e s ranges, and Alejo fails to show how an adequate explanation would h a v e changed either sentence. Therefore, he has failed to show that the error, if any, affected his substantial rights. See id. A le jo has also not shown that the district court committed error, plain or o t h e r w is e , by imposing a substantively unreasonable sentence. See Gall, 552 U .S . at 51. The record in this case provides sufficient justification for the district c o u r t's implicit determination that a 93-month sentence was necessary to afford a d e q u a t e deterrence to criminal conduct and to protect the public from Alejo's fu t u r e crimes. See 3553(a)(2)(B), (C). T o the extent that Alejo argues that the 24-month revocation sentence m a g n ifie s the unreasonableness of his 93-month sentence, a revocation sentence b a s e d on a separate conviction has no bearing on the reasonableness of the s e n te n c e imposed for the most recent conviction. See United States v. LopezV e la s q u e z , 526 F.3d 804, 808-09 (5th Cir. 2008). The 24-month revocation s e n te n c e was within the guidelines range and statutory maximum, and the c o n s e c u t iv e nature of the sentence is expressly authorized by the Guidelines. See 3583(e)(3); U.S.S.G. 7B1.4(a), 7B1.3(f). A s Alejo acknowledges, his arguments that the presumption of r e a s o n a b le n e s s should not apply because U.S.S.G. 2L1.2 is not e m p i r ic a lly -b a s e d and that he can satisfy the third and fourth prongs of the 3 Case: 09-41009 Document: 00511180302 Page: 4 No. 09-41009 c/w No. 09-41023 Date Filed: 07/21/2010 p la in error test without showing any effect on the length of his sentence are fo r e c lo s e d by Mondragon-Santiago, 564 F.3d at 361, 365-67. T h e judgments of the district court are AFFIRMED. 4

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