     Case: 12-50833       Document: 00512258923         Page: 1     Date Filed: 05/31/2013




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

                                                                            FILED
                                                                           May 31, 2013
                                     No. 12-50833
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

RAFAEL HERNANDEZ-PEREZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:12-CR-929-1


Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
       Pursuant to his guilty plea, Rafael Hernandez-Perez was convicted of
illegal reentry following removal from the United States and received, inter alia,
24 months’ imprisonment and three years’ supervised release. Contesting only
the supervised release, Hernandez contends his sentence was procedurally and
substantively unreasonable because the district court did not consider Guideline
§ 5D1.1(c) (imposition of supervised release ordinarily not favored for person



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50833

likely to be deported), and it failed to explicitly find the need for an “added
measure of deterrence”, as recommended by § 5D1.1(c)’s commentary.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to 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, 51 (2007). In that respect,
for issues preserved in district court, 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 he concedes, Hernandez failed, however, to present in district court his
contentions regarding supervised release; therefore, review is only for plain
error. E.g., United States v. Dominguez-Alvarado, 695 F.3d 324, 327 (5th Cir.
2012). For reversible plain error, Hernandez must show a clear or obvious error
that affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). He fails to do so.
      At sentencing, the district court stated its concern that, because
Hernandez’ children were United States citizens, and the United States was “the
only place that [he had] known”, Hernandez would be tempted to return.
Accordingly, it cautioned Hernandez that returning illegally to the United States
would result in additional criminal penalties. Despite not explicitly stating the
particular facts of Hernandez’ case warranted supervised release, the court’s
explanation was adequate to support its imposition. E.g., United States v.
Cancino-Trinidad, 710 F.3d 601, 607 (5th Cir. 2013) (imposition of supervised
release not plain error where court implicitly considered its deterrent effect); see
also Dominguez-Alvarado, 695 F.3d at 330 (no plain error where court made




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                                No. 12-50833

particularized statements explaining why sentence – which included supervised
release – was necessary to deter future criminal conduct and illegal reentry).
      AFFIRMED.




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