USA v. Fortunato Hernandez-Rodriguez

Filing

UNPUBLISHED OPINION FILED. [11-40275 Affirmed, 11-40293 Affirmed] Judge: CDK , Judge: EGJ , Judge: JEG. Mandate pull date is 01/25/2012 for Appellant Fortunato Hernandez-Rodriguez [11-40275, 11-40293]

Case: 11-40275

Document: 00511713588

Page: 1

Date Filed: 01/04/2012

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 11-40275
c/w No. 11-40293
Summary Calendar

January 4, 2012
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FORTUNATO HERNANDEZ-RODRIGUEZ,
Defendant-Appellant

Appeals from the United States District Court
for the Southern District of Texas
USDC No. 5:10-CR-1654-1
USDC No. 5:10-CR-724-1

Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
Fortunato Hernandez-Rodriguez appeals the 84-month sentence imposed
following his guilty plea conviction for being found unlawfully in the United
States following deportation in violation of 8 U.S.C. § 1326 and the consecutive
12-month sentence imposed following the revocation of a prior term of
supervised release. He contends that the sentence imposed following his illegal

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Document: 00511713588

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Date Filed: 01/04/2012

No. 11-40275
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reentry conviction is procedurally unreasonable because of the manner in which
the district court considered and weighed the 18 U.S.C. § 3553(a) factors.
Specifically, Hernandez-Rodriguez argues that the district court afforded too
much weight to his prior illegal reentry conviction and minimized or overlooked
other mitigating factors including his serious alcohol and substance abuse
problem, the severe injuries he sustained during his arrest for the instant illegal
reentry offense, and his motive for returning to the United States.

He

acknowledges that we apply plain error review when a defendant fails to object
to the adequacy of the district court’s explanation for the sentence and that his
argument is foreclosed by United States v. Mondragon-Santiago, 564 F.3d 357,
364-65 (5th Cir. 2009), but he seeks to preserve these issues for further review.
Because Hernandez-Rodriguez did not object to the manner in which the district
court considered and weighed the § 3553(a) factors in the district court, plain
error review applies. See Mondragon-Santiago, 564 F.3d at 361.
The

record

reflects

that

the

district

court

considered

Hernandez-Rodriguez’s mitigation arguments, weighed the § 3553(a) factors, and
provided a reasoned basis for its decision. See Rita v. United States, 551 U.S.
338, 356 (2007). Hernandez-Rodriguez’s belief that the § 3553(a) factors should
have been weighted differently does not suffice to show that his sentence is
procedurally unreasonable. See Gall v. United States, 552 U.S. 38, 51 (2007).
Moreover, even if we were to conclude that the district court failed to properly
weigh the § 3553(a) factors, Hernandez-Rodriguez has not shown that the error
affected his substantial rights because he cannot show that the district court
would have imposed a below-guidelines sentence in the absence of the error. See
Mondragon-Santiago, 564 F.3d at 364-65. Therefore, there is no reversible plain
error. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
Hernandez-Rodriguez also contends that the sentence imposed following
the revocation of his supervised release is procedurally unreasonable because the
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district court failed to conduct a revocation hearing pursuant to Federal Rule of
Criminal Procedure 32.1. Because Hernandez-Rodriguez did not object to the
revocation proceeding or sentence in the district court, review is for plain error.
See United States v. Whitelaw, 580 F.3d 256, 260 (5th Cir. 2009); United States
v. Magwood, 445 F.3d 826, 828 (5th Cir. 2006).
Although the record is unclear as to whether Hernandez-Rodriguez was
provided written notice of the alleged supervised release violation, he was
apprised of the revocation charge at his initial appearance.

Thus,

Hernandez-Rodriguez was fully informed and aware of the allegation against
him, and the district court’s failure to ensure that he received written notice does
not constitute reversible plain error.
Hernandez-Rodriguez

was

represented

See Puckett, 129 S. Ct. at 1429.
by

appointed

counsel

at

the

rearraignment hearing, as well as at the joint revocation and sentencing
hearing. Although he did not plead true to the revocation charge, he pleaded
guilty to the underlying crime upon which the charge was based. At the
rearraignment hearing, Hernandez-Rodriguez heard the recitation of evidence
to support his guilty plea and admitted the truth of those factual allegations.
Hernandez-Rodriguez did not contest the revocation charge and nothing in the
record suggests that he wished to present any evidence at the revocation
hearing. Finally, Hernandez-Rodriguez was afforded an opportunity to make a
statement and present mitigating evidence prior to the revocation of his
supervised release. Therefore, Hernandez-Rodriguez has not shown that any
error in failing to comply with Rule 32.1 or Morrissey v. Brewer, 408 U.S. 471,
488-89 (1972), affected his substantial rights or the fairness, integrity, or public
reputation of judicial proceedings. See Puckett, 129 S. Ct. at 1429.
Finally, Hernandez-Rodriguez contends that the consecutive sentences
imposed following his illegal reentry conviction and the revocation of his
supervised release are substantively unreasonable.
3

He argues that the

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84-month within-guidelines sentence is substantively unreasonable because the
district court failed to account for mitigating factors. Hernandez-Rodriguez also
argues that given the fundamental procedural and due process errors with the
revocation proceeding, the consecutive 12-month revocation sentence
compounded the substantive unreasonableness of both sentences.
Hernandez-Rodriguez acknowledges that we apply plain error review
when a defendant fails to object to the substantive reasonableness of his
sentence after it is imposed. See United States v. Peltier, 505 F.3d 389, 391-92
(5th Cir. 2007). He also acknowledges that his argument that the lack of an
empirical basis for U.S.S.G. § 2L1.2 precludes an appellate presumption of
reasonableness is foreclosed by circuit precedent. See Mondragon-Santiago, 564
F.3d at 366-67. Nevertheless, he seeks to preserve these issues for further
review.
Hernandez-Rodriguez has not shown that the within-guidelines sentence
imposed following his illegal reentry conviction is substantively unreasonable.
The district court considered Hernandez-Rodriguez’s mitigation arguments,
weighed the § 3553(a) factors, and provided a reasoned basis for its decision to
impose a sentence at the bottom of the applicable guidelines range.
Hernandez-Rodriguez’s assertions that his serious alcohol and substance abuse
problem, the severe injuries he sustained during his arrest for the instant illegal
reentry offense, and his motive for returning to the United States justified a
lower sentence are insufficient to rebut the presumption of reasonableness. See
United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008) (upholding
the presumption of reasonableness of a within-guidelines sentence where the
appellant argued that the Guidelines overstated the seriousness of his offense
and his motive for returning justified a sentence below the guidelines range).
Hernandez-Rodriguez has also failed to show that the consecutive
12-month revocation sentence is substantively unreasonable. The revocation
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sentence was below the recommended range of imprisonment and did not exceed
the two-year statutory minimum. See § 1326(b)(2); 18 U.S.C. §§ 3559(a)(3),
3583(e)(3). Further, we have repeatedly upheld as reasonable within-guidelines
revocation sentences ordered to run consecutively to the sentence for the
criminal offense leading to the revocation. United States v. Ramirez, 264 F.
App’x 454, 458-59 (5th Cir. 2008). Therefore, there is no reversible plain error.
See Puckett, 129 S. Ct. at 1429.
AFFIRMED.

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