     Case: 09-20216     Document: 00511023293          Page: 1    Date Filed: 02/09/2010




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

                                                  FILED
                                                                          February 9, 2010
                                     No. 09-20216
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

DANIEL HERNANDEZ

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-CR-546-1


Before KING, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
        Daniel Hernandez appeals his 114-month sentence, imposed following his
conviction for being an alien found unlawfully in the United States after
previously having been removed. See 8 U.S.C. § 1326(a). He contends: the
district court failed to provide sufficient reasons supporting the within-
guidelines sentence in the light of his request for a downward departure for



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-20216    Document: 00511023293 Page: 2         Date Filed: 02/09/2010
                                 No. 09-20216

cultural assimilation; and, his sentence was substantively unreasonable because
it was greater than necessary to meet the goals of 18 U.S.C. § 3553(a).
      Although post-Booker, the Sentencing Guidelines are advisory only, and
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, 50–51 (2007).       In that respect, 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 noted, pursuant to Gall, we engage in a bifurcated review of the
sentence imposed by the district court. United States v. Delgado-Martinez, 564
F.3d 750, 752 (5th Cir. 2009). First, we consider whether the district court
committed a “significant procedural error”. Id. at 752–53. If, as in this case,
there is no such error, we then review the substantive reasonableness of the
sentence imposed, as noted above, for an abuse of discretion. Id. at 751–53. “[A]
sentence within a properly calculated Guideline range is presumptively
reasonable”. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      In district court, Hernandez did not object to the reasons provided for
denying a downward departure; therefore, our review is only for plain error. See
United States v. Mondragon-Santiago, 564 F.3d 357, 364 (5th Cir.), cert. denied,
130 S. Ct. 192 (2009). Reversible plain error exists where a clear or obvious
error affects defendant’s substantial rights. E.g., United States v. Baker, 538
F.3d 324, 332 (5th Cir. 2008), cert. denied, 129 S. Ct. 962 (2009); see also Puckett
v. United States, 129 S. Ct. 1423, 1429 (2009). Even then, we retain discretion
whether to correct such an error and, generally, will do so only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. Baker,
538 F.3d at 332.



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   Case: 09-20216   Document: 00511023293 Page: 3        Date Filed: 02/09/2010
                                No. 09-20216

      Even “brief” reasons for imposing a sentence, such as the district court
provided, are legally sufficient. See Rita v. United States, 551 U.S. 338, 358
(2007). Moreover, nothing in the record indicates that Hernandez’ sentence
would have been different had the court provided greater explanation of its
selected sentence. See Mondragon-Santiago, 564 F.3d at 364–65. Therefore,
Hernandez fails to show the district court’s explanation of its reasons for
supporting his sentence constitutes plain error.
      Regarding his substantive-unreasonableness claim, Hernandez fails to
overcome the presumption that a “discretionary sentence imposed within a
properly calculated guidelines range” is reasonable.       See United States v.
Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328
(2008). Whether reviewed for abuse of discretion or plain error, the district
court’s consideration of the advisory guidelines range, the § 3553(a) factors, the
information in the presentence report, and the parties’ contentions, along with
its finding that the guidelines range adequately reflected the relevant sentencing
factors, shows Hernandez’ sentence was not substantively unreasonable.
      AFFIRMED.




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