     Case: 12-51084       Document: 00512363914         Page: 1     Date Filed: 09/05/2013




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

                                                                            FILED
                                                                        September 5, 2013
                                     No. 12-51084
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JORGE ANTONIO HERNANDEZ-HERNANDEZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:10-CR-3263-1


Before JONES, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM:*
       Jorge Antonio Hernandez-Hernandez contends his 24-month, consecutive
sentence upon revocation of supervised release is substantively unreasonable
because it is greater than necessary to meet the sentencing goals of 18 U.S.C.
§ 3553(a). In 2011, Hernandez received a sentence of time served and two years
of supervised release, following his guilty-plea conviction for escape. During his
supervised-release period, however, Hernandez was arrested for the new crime
of “Illegal Barter/Expend Invest in Marijuana Over 50 Pounds”. He pleaded

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-51084       Document: 00512363914     Page: 2   Date Filed: 09/05/2013

                                   No. 12-51084

guilty ultimately to conspiracy to possess a controlled substance with intent to
distribute. Subsequently, the district court found he had violated six conditions
of his supervised release, revoked it, and sentenced him to 24 months in prison,
to be served consecutively to the 108 months imposed for the new drug-
conspiracy conviction.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-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, 552 U.S. 38, 51 (2007). In that respect,
for issues preserved 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 Circ. 2005).
      Hernandez does not claim procedural error. Instead, he maintains only
that the challenged sentence was substantively unreasonable.
      The district court may impose a sentence that falls within the maximum
term of imprisonment allowed by statute for the revocation sentence. See 18
U.S.C. § 3583(e)(3). Hernandez’s 24-month sentence, which is within both the
statutory maximum prison term and the Sentencing Commission’s policy-
statement sentencing range, is substantively reasonable. See United States v.
McKinney, 520 F.3d 425, 427-28 (5th Cir. 2008); 18 U.S.C. § 3583(e)(3); U.S.S.G.
§ 7B1.4, p.s.
      In addition, the district court had the discretion to impose a consecutive
sentence. See United States v. Gonzalez, 250 F.3d 923, 929-30 (5th Cir. 2001).
The court considered the relevant sentencing factors contained in 18 U.S.C.
§ 3553(a) when exercising its discretion to impose consecutive sentences. See 18
U.S.C. § 3584(a) and (b); Gonzalez, 250 F.3d at 929-30. The decision to impose
the sentence consecutively also accords with the recommendations set forth in

                                         2
    Case: 12-51084    Document: 00512363914     Page: 3   Date Filed: 09/05/2013

                                 No. 12-51084

the Guidelines “Revocation of Probation and Supervised Release” policy
statement and commentary. See U.S.S.G. § 7B1.3(f), p.s.; see also § 7B1.3, p.s.,
comment. (n.4).      Furthermore, the sentence imposed is supported by
Hernandez’s lengthy criminal history and his violation of the terms of his
supervised release after being sentenced for his underlying escape conviction.
See Gonzalez, 250 F.3d at 931.
      AFFIRMED.




                                       3
