USA v. Rafael Hernandez-Soriano

Filing

UNPUBLISHED OPINION FILED. [16-40905 Affirmed] Judge: FPB , Judge: JLD , Judge: ECP. Mandate pull date is 06/08/2017 for Appellant Rafael Hernandez-Soriano [16-40905]

Case: 16-40905

Document: 00513997648

Page: 1

Date Filed: 05/18/2017

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

No. 16-40905
Summary Calendar

FILED
May 18, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RAFAEL HERNANDEZ-SORIANO,

Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:15-CR-1415-1
Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
Rafael Hernandez-Soriano appeals his 50-month within-guidelines
sentence for illegally reentering the United States after deportation.

He

contends that the district court committed procedural error by failing to
recognize that it had the authority to grant his motion for a downward variance
based on a then-pending amendment to U.S.S.G. § 2L1.2. See United States v.
Clay, 787 F.3d 328, 332 (5th Cir. 2015).

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40905

Document: 00513997648

Page: 2

Date Filed: 05/18/2017

No. 16-40905
Hernandez-Soriano’s argument is predicated on the district court’s
statement at sentencing that it was bound to apply the version of the
Guidelines then in effect, which predated the effective date of the amendment
in question. However, the court made that statement, which is a correct
statement of law, United States v. Rodarte-Vasquez, 488 F.3d 316, 322 (5th Cir.
2007), in response to Hernandez-Soriano’s request for a continuance until after
the effective date of the amendment.

While the statement is not truly

responsive to the continuance request, it does not suggest a belief by the
district court that it had no discretion to grant a downward variance in light of
the pending amendment. Rather, the district court made an individualized
assessment, taking into account Hernandez-Soriano’s mitigation arguments,
the 18 U.S.C. § 3553(a) factors, the Sentencing Guidelines, and HernandezSoriano’s criminal history, which, the court noted, includes a very serious
federal drug distribution conviction.

Considering all of the relevant

information, the court determined that 50 months was an appropriate sentence
and thus denied the requested variance. Accordingly, Hernandez-Soriano has
shown no error, plain or otherwise.
Because there is no support for Hernandez-Soriano’s contention that the
district court actually made the error he complains of, the judgment of the
district court is AFFIRMED.

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