     Case: 16-50024       Document: 00513659579         Page: 1     Date Filed: 08/31/2016




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


                                     No. 16-50024                                 FILED
                                   Summary Calendar                         August 31, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JUAN CONCEPCION                HERNANDEZ-GARCIA,                also   known          as      Juan
Hernandez-Garcia,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:15-CR-79-1


Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
       Juan Concepcion Hernandez-Garcia appeals his 52-month sentence,
imposed following his guilty plea to unlawful presence in the United States
following deportation, in violation of 8 U.S.C. § 1326(a), (b)(1), (2). His request
that this court remand this matter to district court to have a copy 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       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
    Case: 16-50024     Document: 00513659579      Page: 2    Date Filed: 08/31/2016


                                  No. 16-50024

amended Presentence Investigation Report (PSR) sent to the Bureau of Prisons
is denied as moot.
      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, 48–51 (2007). In
that respect, for issues preserved in district court, application of the Guidelines
is reviewed de novo; factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      Hernandez, however, did not raise three of the following four issues at
sentencing. Therefore, for the three issues raised on appeal for the first time,
review is for plain error only. E.g., United States v. Broussard, 669 F.3d 537,
546 (5th Cir. 2012). Under that standard, Hernandez must show a forfeited
plain (“clear” or “obvious”) error that affected his substantial rights. Puckett
v. United States, 556 U.S. 129, 135 (2009). If he does so, we have discretion to
correct the reversible plain error, but should do so only if it “seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings”. Id.
      For the first time on appeal, Hernandez contends his sentence was
unreasonable because the advisory Guidelines sentencing range for an illegal-
reentry offense, Guideline § 2L1.2, is too high for lack of an empirical basis.
He concedes his contention is foreclosed by this court’s precedent, but he raises
the issue in preservation for possible further review. See United States v.
Mondragon-Santiago, 564 F.3d 357, 365–67 (5th Cir. 2009).
      Hernandez also claims for the first time that § 2L1.2 results in
unreasonable sentencing ranges because prior convictions are considered in
determining the offense level and the criminal-history category. And, for the



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                                  No. 16-50024

final issue raised for the first time, he contends illegal reentry is no more than
international trespass. These claims do not present plain error. See United
States v. Peltier, 505 F.3d 389, 391–92 (5th Cir. 2007); United States v. Duarte,
569 F.3d 528, 529–31 (5th Cir. 2009); United States v. Aguirre-Villa, 460 F.3d
681, 683 (5th Cir. 2006).
      As he did in district court, Hernandez asserts his sentence is
substantively unreasonable because the court placed too much weight on his
criminal history and did not give proper consideration to the mitigating factors
presented at sentencing. As noted above, the substantive reasonableness of a
sentence is reviewed under an abuse-of-discretion standard.          Mondragon-
Santiago, 564 F.3d at 361.
      The court’s sentencing comments and written statement of reasons
reflect reliance on the 18 U.S.C. § 3553(a) factors and consideration of the
parties’ contentions, including mitigating evidence, and the PSR. The record
reflects an individualized sentencing decision made in the light of the facts of
the case.   See Gall, 552 U.S. at 49–50.      This court may not reweigh the
sentencing factors. Id. at 51. Hernandez does not rebut the presumption of
reasonableness of his Guidelines sentence because he does not demonstrate the
court failed to consider any significant factors, considered any improper
factors, or abused its discretion in imposing the sentence. See United States v.
Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      AFFIRMED.




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