     Case: 11-41325       Document: 00512081445         Page: 1     Date Filed: 12/12/2012




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

                                                                            FILED
                                                                        December 12, 2012
                                     No. 11-41325
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

FAUSTINO HERNANDEZ-AGUILAR,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:11-CR-694-1


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Faustino Hernandez-Aguilar (Hernandez) appeals following his guilty plea
conviction for being an alien present in the United States after having been
deported. The district court sentenced Hernandez to 57 months of imprisonment
and three years of supervised release.
       Hernandez argues that the district court’s imposition of a three-year term
of supervised release resulted in a procedurally and substantively unreasonable
sentence. His argument is based on U.S.S.G. § 5D1.1(c) and the accompanying

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-41325     Document: 00512081445       Page: 2   Date Filed: 12/12/2012

                                   No. 11-41325

commentary, which became effective November 1, 2011. Because he failed to
raise his claims in the district court, our review is limited to plain error. See
United States v. Dominguez-Alvarado, 695 F.3d 324, 327 (5th Cir. 2012). To
show plain error, Hernandez must show a forfeited error that is clear or obvious
and that affects his substantial rights. See Puckett v. United States, 556 U.S.
129, 135 (2009). If he makes such a showing, this court has the discretion to
correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
      In Dominguez-Alvarado this court held, on plain error review, that
notwithstanding the recent addition of the provisions of § 5D1.1(c), a “departure
analysis” is not triggered where the district court imposes a term of supervised
release that is within the statutory and guidelines range for the offense of
conviction. 695 F.3d at 329.        The supervised release term imposed in
Hernandez’s case was within the statutory and guidelines range for his offense
of conviction; therefore, it did not trigger a “departure analysis.”         See id.
Hernandez’s contention that the district court was required to give notice of, and
an explanation for, the supervised release term thus fails. Moreover, as in
Dominguez-Alvarado, the district court made a determination that supervised
release was merited based on Hernandez’s high risk of recidivism and his violent
criminal history.      Finally, because the supervised release term was
presumptively reasonable, we infer that the district court considered all
pertinent sentencing considerations in imposing the sentence. See United States
v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).
      Hernandez also argues that the district court committed reversible plain
error by convicting, sentencing, and entering judgment against him under 8
U.S.C. § 1326(b)(2), rather than § 1326(b)(1), because he does not have a
qualifying aggravated felony conviction. He argues that his 2010 aggravated
assault conviction does not qualify as an aggravated felony conviction for
purposes of § 1326(b)(2) because he was sentenced only to eight years’ deferred-

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                                No. 11-41325

adjudication probation for the offense, which does not meet the one-year
threshold required for an offense to be qualified as an aggravated felony under
8 U.S.C. § 1101(a)(43)(F).
      The Government concedes that Hernandez does not have a conviction that
meets the definition of an aggravated felony that would have supported his
conviction under § 1326(b)(2). Hernandez is not entitled to be resentenced,
however, because he has not shown that the error affected the outcome in the
district court. See United States v. Mondragon-Santiago, 564 F.3d 357, 369 (5th
Cir. 2009).   Nevertheless, we REMAND the case to the district court for
reformation of the judgment.




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