     Case: 11-10821     Document: 00511866200         Page: 1     Date Filed: 05/24/2012




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

                                                                            FILED
                                                                           May 24, 2012
                                     No. 11-10821
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

EDUARDO HERNANDEZ-GUTIERREZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:11-CR-40-1


Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Eduardo Hernandez-Gutierrez pleaded guilty to a single count of illegal
reentry after deportation. The presentence investigation report (PSR) calculated
a Guidelines range of 24 to 30 months’ imprisonment; however, as suggested in
the PSR, the district court departed upward pursuant to Guideline § 4A1.3,
based on the inadequacy of the criminal-history category, to a sentence of 45-
months’ imprisonment.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10821    Document: 00511866200       Page: 2    Date Filed: 05/24/2012

                                   No. 11-10821

      Hernandez contends the district court procedurally erred in departing
upward because: it did not consider each intermediate step in the process before
selecting his sentence; and, to determine his sentence, it used the reasonableness
standard employed by appellate courts. Because Hernandez failed to preserve
either of these issues in district court, review is only for plain error. E.g., United
States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). To establish reversible plain
error, Hernandez must show a forfeited error that is clear or obvious and affects
his substantial rights. E.g., Puckett v. United States, 556 U.S. 129, 135 (2009).
If such showing is made, our court retains the discretion to correct the error and
generally will do so only if the reversible plain error “seriously affects the
fairness, integrity or public reputation of judicial proceedings”. Id. (internal
quotation marks omitted).
      As our court has stated, “it is well settled that a district court does not
need to go through a ritualistic exercise in which it mechanically discusses each
criminal history category it rejects en route to the category that it selects, and
that the court’s reasons for rejecting intermediate categories will be quite
apparent in its stated reasons for departure”. United States v. Zuniga-Peralta,
442 F.3d 345, 348 n.2 (5th Cir. 2006) (internal quotation marks omitted). At
sentencing, the district court stated that it determined the extent of the
departure by moving “incrementally” through the Guidelines sentencing table
as required by § 4A1.3(a)(4). In addition, the district court’s adoption of the PSR
and its statements at sentencing explain that it found an upward departure was
warranted and the intermediate categories and levels were insufficient, because
of Hernandez’ continued disregard of immigration procedures and his continuing
criminal activity. U.S.S.G. § 4A1.3(a)(2)(C). The district court’s explanation for
the departure implicitly established the rationale for rejecting the intervening
levels. See Zuniga-Peralta, 442 F.3d at 348 n.2. Therefore, Hernandez has not
shown error.



                                          2
   Case: 11-10821    Document: 00511866200      Page: 3    Date Filed: 05/24/2012

                                  No. 11-10821

      Hernandez also contends the district court erred by using an appellate-
“reasonableness” standard in determining his sentence; he maintains the court
was required instead to impose a sentence that was sufficient but not greater
than necessary to meet the objectives of 18 U.S.C. § 3553(a) (including, inter
alia, nature of offense, history of defendant, and need for sentence imposed to
protect the public and promote respect for law). It is correct that, at sentencing,
the district court stated it had concluded the sentence was “reasonable”.
However, the court also stated that the sentence was based on both the advisory
Guidelines and the § 3553(a) sentencing factors. In particular, immediately
before referring to the sentence as “reasonable”, the district court stated that the
sentence was “sufficient but not greater than necessary” to achieve the § 3553(a)
sentencing objectives.    The district court’s subsequent conclusion that the
sentence also was reasonable was not error.
      AFFIRMED.




                                         3
