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

                                                FILED
                                                                  February 18, 2009
                                 No. 08-50601
                              Conference Calendar              Charles R. Fulbruge III
                                                                       Clerk

UNITED STATES OF AMERICA

                                             Plaintiff-Appellee

v.

ENRIQUE HERRERA-RODRIGUEZ

                                             Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 3:08-CR-618-ALL


Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
      Enrique Herrera-Rodriguez (Herrera) appeals the 46-month sentence he
received following his guilty-plea conviction for illegal reentry, in violation of 8
U.S.C. § 1326. He argues, for the first time on appeal, that his sentence is
substantively unreasonable because he received a much harsher sentence for
this, his first illegal-reentry conviction than he did for his prior alien-smuggling
offense, which he asserts is a more serious offense. For that reason, he contends



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-50601

that the Guidelines are internally inconsistent. Herrera additionally argues that
the sentence imposed fails to take into consideration the circumstances of his
offense or his personal history and characteristics.
      Because these arguments are raised for the first time on appeal, they are
reviewed for plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th
Cir. 2007). In order to demonstrate plain error, Herrera must show clear or
obvious error that affected his substantial rights. Id. at 392. If he can make
that showing, this court has “the discretion to correct the forfeited error but
should do so only if the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id.
      Herrera has failed to demonstrate any clear or obvious error on the district
court’s part. As he concedes, because his sentence was imposed within the
correctly calculated guidelines range, it is presumptively reasonable, and the
district court’s consideration of all of the 18 U.S.C. § 3553(a) factors, including
the nature and circumstances of the offense and the history and characteristics
of the defendant, is presumed. See United States v. Alonzo, 435 F.3d 551, 554
(5th Cir. 2006); see also United States v. Mares, 402 F.3d 511, 518-19 (5th Cir.
2005). Herrera’s assertion that he received a harsher sentence for this illegal
reentry conviction than for his prior alien-smuggling offense ignores the role that
his prior conviction played in the calculation of both his offense level and his
criminal history score in the instant case. The 2005 alien-smuggling conviction
increased Herrera’s offense level by 16 and gave him a total of five criminal
history points, resulting in a criminal history score of III. Thus, it is precisely
because of Herrera’s prior conviction that the instant offense yielded a higher
sentence, and the Guidelines are not internally inconsistent.
      The district court’s judgment is AFFIRMED.




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