USA v. Ernesto Hernandez-Moreno

Filing

UNPUBLISHED OPINION FILED. [11-50865 Affirmed ] Judge: FPB , Judge: CES , Judge: SAH Mandate pull date is 07/11/2012 for Appellant Ernesto Hernandez-Moreno [11-50865]

Case: 11-50865

Document: 00511893337

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Date Filed: 06/20/2012

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

FILED
No. 11-50865
Summary Calendar

June 20, 2012
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ERNESTO HERNANDEZ-MORENO,
Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:08-CR-220-1

Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Ernesto Hernandez-Moreno appeals the 24-month sentence imposed
following the revocation of his supervised release. He contends that the aboveguidelines sentence is substantively unreasonable because it is greater than
necessary to satisfy the statutory sentencing goals of 18 U.S.C. § 3553(a).
Hernandez-Moreno asserts, inter alia, that the sentence does not support the
deterrence rationale articulated by the district court, is excessive in light of the

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 11-50865
non-violent nature of his conduct, and will unnecessarily cost the Government
additional money.
Hernandez-Moreno asserts that revocation sentences should be reviewed
for “reasonableness.” We typically review revocation sentences under 18 U.S.C.
§ 3742(a)(4)’s “plainly unreasonable” standard. United States v. Miller, 634 F.3d
841, 843 (5th Cir.), cert. denied, 132 S. Ct. 496 (2011). However, because
Hernandez-Moreno raised only a general objection in the district court to the
reasonableness of his sentence, review is for plain error only. See United States
v. Dunigan, 555 F.3d 501, 506 (5th Cir. 2009). Thus, Hernandez-Moreno must
show a clear or obvious error that affected his substantial rights. See Puckett v.
United States, 556 U.S. 129, 135 (2009). We have discretion to correct the error
but only if it seriously affects the fairness, integrity, or public reputation of the
proceedings. See id.
Hernandez-Moreno’s sentence, while in excess of the range indicated by
the Sentencing Guidelines’ non-binding policy statements, was within the
statutory maximum term of imprisonment that the district court could have
imposed. See 18 U.S.C. §§ 3559(a)(3), 3583(e)(3). The district court considered
the nature and circumstances of the new illegal reentry offense, HernandezMoreno’s history and characteristics, including his multiple previous illegal
reentries, and the need to deter him from future illegal conduct. The district
court reasoned that a 24-month sentence was proper under the circumstances.
Accordingly, the record supports that the district court based HernandezMoreno’s sentence on an individualized assessment of the facts and permissible
sentencing factors. See Miller, 634 F.3d at 844; Gall v. United States, 552 U.S.
38, 50-51 (2007).
While Hernandez-Moreno disagrees with the district court’s assessment
of a proper sentence, his disagreement does not demonstrate that the district
court committed error, plain or otherwise. See Gall, 552 U.S. at 51-52; United
States v. Whitelaw, 580 F.3d 256, 265 (5th Cir. 2009) (upholding 36-month
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No. 11-50865
sentence, where the guidelines range was 4 to 10 months of imprisonment). He
essentially seeks to have us reweigh the § 3553(a) factors, which we will not do.
See Gall, 552 U.S. at 51. Thus, the district court’s judgment is AFFIRMED.

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