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

                                                 FILED
                                                                             July 8, 2009
                                     No. 07-40986
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

JORGE HERNANDES-VALDES, also known as George Dolores Hernandes
Valdes

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                       for the Southern District of Texas
                             USDC No. 1:07-CR-355-1


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Jorge Hernandes-Valdes challenges his sentence of, inter alia, 72-months’
imprisonment, imposed upon his conviction for illegal reentry into the United
States, subsequent to his aggravated-felony conviction.
       Although post-Booker, the Sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                    No. 07-40986

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, 128 S. Ct. 586, 596 (2007). In that respect, for an issue raised 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).
      Hernandes first claims the district court committed significant procedural
error by imposing a sentence within the pertinent guidelines range, without
explaining its rejecting Hernandes’ below-the-range contentions. In this
instance, however, because this issue was not raised in district court, it is
reviewed only for plain error. E.g., United States v. Mondragon-Santiago, 564
F.3d 357, 361 (5th Cir. 2009). To show reversible plain error, Hernandes must
show a forfeited error that is “clear” or “obvious” and that affected his
substantial rights. E.g., Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
Even if he makes such a showing, this court retains discretion to correct the
error, and, generally, will do so only if it seriously affects the fairness, integrity,
or public reputation of judicial proceedings. Id.
      Assuming, arguendo, the district court erred by failing to explain its
rejection of Hernandes’ claims, Hernandes still has not shown reversible plain
error because he has failed to show that a more extensive explanation by the
district court would have resulted in his receiving a lower sentence.              See
Mondragon-Santiago, 564 F.3d at 364-65.
      For the second of three issues, Hernandes contends that his sentence was
unreasonable in the light of Gall, 128 S. Ct. at 586, and Kimbrough v. United
States, 128 S. Ct. 558 (2007). Again, this claim is reviewed only for plain error
because Hernandes did not assert in district court that our precedent
impermissibly restricted the court’s discretion in sentencing. See United States
v. Rodriguez-Rodriguez, 530 F.3d 381, 387-88 (5th Cir.), cert. denied, 129 S. Ct.



                                          2
                                   No. 07-40986

425 (2008). Hernandes fails to establish the claimed error affected his sentence;
therefore, he is not entitled to relief on this claim. See id.
      Hernandes’ final contention—that his sentence is not entitled to a
presumption of reasonableness because the relevant guideline is not supported
by empirical evidence—is also without merit. See Mondragon-Santiago, 564
F.3d at 366-67. His sentence is presumptively reasonable. See United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Hernandes’ claims that a lesser
sentence was warranted due to his substance abuse and lack of incentive to
reoffend do not suffice to rebut this presumption. See United States v. Rowan,
530 F.3d 379, 381 (5th Cir. 2008).
      AFFIRMED.




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