     Case: 17-20465      Document: 00514528724         Page: 1    Date Filed: 06/26/2018




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

                                    No. 17-20465                                FILED
                                  Summary Calendar                          June 26, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

IGNACIO HERNANDEZ-DOMINGUEZ, also known as Ignacio Pedro
Hernandez, Jr., also known as Ignacio Pedro Hernandez-Dominguez, also
known as Ignacio Pedro Hernandez Dominguez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:17-CR-25-1


Before REAVLEY, GRAVES, and HO, Circuit Judges.
PER CURIAM: *
       Ignacio Hernandez-Dominguez pleaded guilty to illegal reentry after a
felony conviction in violation of 8 U.S.C. § 1326(a), (b)(1). The presentence
report (PSR) calculated Hernandez-Dominguez’s guidelines imprisonment
range as 10-16 months. The district court sentenced Hernandez-Dominguez to
an above-guidelines sentence of 30 months of imprisonment followed by 3 years


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-20465

of supervised release. Hernandez-Dominguez appeals, arguing that his above-
guidelines sentence is procedurally and substantively unreasonable because it
is based on clearly erroneous facts regarding his deportation history.
      He concedes that he did not object to the procedural reasonableness of
his sentence. “When a defendant fails to raise a procedural objection below,
appellate review is for plain error only.” United States v. Lopez-Velasquez, 526
F.3d 804, 806 (5th Cir. 2008). Hernandez-Dominguez preserved his challenge
to the substantive reasonableness of his sentence; therefore, that issue is
reviewed for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51
(2007).
      At the sentencing hearing, the district court explained that an upward
variance was warranted based on Hernandez-Dominguez’s multiple prior
deportations. The court first stated that “[t]he Defendant was removed from
the United States in September of 2005. . . . [H]e was back in the United States
within a very short period of time, found here by February 28th of ’06, just a
few months later. This statement was in error.         The PSR reflects that
Hernandez-Dominguez was actually in state custody from September 2005 to
February 2006, and he was not deported for the first time until April 2006.
After the court’s erroneous statement, to which there was no objection, the
court correctly listed Hernandez-Dominguez’s three actual deportations in
April 2006, August 2015, and August 2016.
      When considered in the context of the record as a whole, it is clear that
Hernandez-Dominguez’s substantial rights were not affected. See Puckett v.
United States, 556 U.S. 129, 135 (2009). The court’s misstatement regarding
a single removal, especially where it was stated to have occurred during the
first year of Hernandez-Dominguez’s 11-year history of removals, deportations,




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                                 No. 17-20465

and other criminal activity, could not have been so compelling such that it
resulted in a procedurally unreasonable sentence under plain error review.
      Hernandez-Dominguez also claims that his sentence is substantively
unreasonable. According to Hernandez-Dominguez, the district court gave
significant weight to an irrelevant or improper factor when it justified the
upward variance by relying on clearly erroneous facts regarding his prior
deportations. See United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
Moreover, he claims that the court’s balancing of the sentencing factors was
“infected” by “clearly erroneous factual determinations,” and, therefore, the
court’s stated reasons did not justify the variance.
      The district court’s single erroneous statement regarding Hernandez-
Dominguez’s deportation history cannot be said to have infected the court’s
consideration of the statutory sentencing factors. As stated, the district court
justified the upward variance based on Hernandez-Dominguez’s history of
prior removals, deportations, and reentries. The court noted that Hernandez-
Dominguez had not been deterred from continued illegal reentries despite a
federal conviction and that an upward variance was necessary to afford
adequate deterrence and to promote respect for the law. Taking into account
the totality of the circumstances and giving appropriate deference to the
district court’s consideration of the 18 U.S.C. § 3553(a) factors, it cannot be
said that the district court abused its discretion. See United States v. Fraga,
704 F.3d 432, 439-40 (5th Cir. 2013).
      The judgment of the district court is AFFIRMED.




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