     Case: 09-10681     Document: 00511081135          Page: 1    Date Filed: 04/15/2010




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

                                                  FILED
                                                                            April 15, 2010
                                     No. 09-10681
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MARTIN HERNANDEZ-DOMINGUEZ,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:09-CR-15-1


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Martin Hernandez-Dominguez (Hernandez) appeals his sentence following
his guilty plea to illegal reentry after deportation. He argues that his sentence
was substantively unreasonable because the district court failed to recognize
that he was not similarly situated to other offenders in criminal history category
VI.
        This court’s process of reviewing a sentence is bifurcated. United States
v. Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir. 2009). First, this court must

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10681    Document: 00511081135 Page: 2         Date Filed: 04/15/2010
                                 No. 09-10681

examine whether the district court committed a significant procedural error in
determining the defendant’s sentence. Id. This court has recognized procedural
errors to include (1) failing to calculate, or improperly calculating, the applicable
sentencing range under the Sentencing Guidelines; (2) treating the Guidelines
as mandatory; (3) failing to consider the 18 U.S.C. § 3553(a) factors; (4)
determining a sentence based on clearly erroneous facts; or (5) failing to
adequately explain the chosen sentence, or any deviation therefrom. Id. If the
district court’s decision is procedurally sound, this court considers the
substantive reasonableness of the sentence, considering the factors set forth in
§ 3553(a).   Id. A sentence within a properly calculated guideline range is
presumptively reasonable. Id.
      For the first time on appeal, Hernandez argues that his sentence should
not be presumed reasonable because the district court committed a procedural
error in selecting his sentence. He argues that the court improperly employed
the appellate standard of “reasonableness.” Because Hernandez failed to raise
this claim in the district court in such a manner as to alert the court of the
nature of his disagreement, his argument is reviewed for plain error only. See
United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), cert. denied,
130 S. Ct. 192 (2009).
      The district court’s statements, read in context, indicate that the court
understood that the Guidelines were advisory only, but nevertheless provided
an appropriate sentencing range in Hernandez’s case. Hernandez thus has not
shown that the district court committed procedural error, plain or otherwise, in
selecting his sentence. See United States v. Cisneros-Gutierrez, 517 F.3d 751,
766 (5th Cir. 2008) (finding that the statement that the Guidelines provided an
“appropriate” sentencing range did not indicate that the district court incorrectly
applied a presumption of reasonableness).
      As to the substantive reasonableness of the sentence, we reject
Hernandez’s attempt to minimize his criminal history. Shortly after he entered

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                                No. 09-10681

the United States illegally in 1989, Hernandez began engaging in serious
offenses, including firearms and narcotics offenses.       During this period,
Hernandez illegally reentered the United States on four occasions, and in three
of those occasions, he reentered within days of his removal. Following his latest
illegal reentry, Hernandez was convicted of driving while intoxicated and theft.
      In sum, Hernandez has failed to overcome the presumption of
reasonableness that is afforded the within-Guideline sentence. Accordingly, the
sentence is AFFIRMED.




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