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

                                                                  FILED
                                                                 August 15, 2008
                                No. 07-40759
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

JOAQUIN HERNANDEZ-VASQUEZ, also known as Joaquin Hernandez

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                         USDC No. 7:07-CR-169-ALL


Before REAVLEY, SMITH, and ELROD, Circuit Judges.
PER CURIAM:*
      Joaquin Hernandez-Vasquez appeals the sentence imposed after he
pleaded guilty to illegally reentering the United States after deportation. The
sentence was within a properly calculated advisory guidelines range that was
increased by a prior conviction for a crime of violence (COV).
      Hernandez-Vasquez contends that his sentence is procedurally
unreasonable because the district court did not give a sufficient explanation for
the sentence. Because Hernandez-Vasquez did not object to the explanation at

      *
      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should not be published and is not precedent except under the limited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. 07-40759

sentencing, we review this contention for plain error. See United States v.
Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008). The district court explained
that the sentence was based on the factors of 18 U.S.C. § 3553(a), independently
and as embodied in the Guidelines; additional elaboration was unnecessary. See
id.; see also Rita v. United States, 127 S. Ct. 2456, 2463-65, 2468 (2007); United
State v. Hernandez, 457 F.3d 416, 424 (5th Cir. 2006). There was no clear or
obvious error that affected Vasquez’s substantial rights or rendered the sentence
procedurally unreasonable. See United States v. Campos-Maldonado, __F.3d__,
2008 WL 2357364, *2 (5th Cir. June 11, 2008).
      Hernandez-Vasquez also contends that Gall v. United States, 128 S. Ct.
586, 596 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007), which
issued after his sentencing, abrogated the rationale of previous Fifth Circuit
decisions by broadening the district court’s discretion to impose a nonguidelines
sentence. He argues, therefore, that the sentencing court labored under a
misconception that it could not sentence Vasquez below the Guidelines in the
absence of “extraordinary circumstances” or based on the court’s disagreement
with guidelines policy or based on disfavored guidelines factors such as hardship
to Vasquez’s children.
      Because this theory was not argued in the district court, we review for
plain error. See Campos-Maldonado, 2008 WL 2357364 at *2 ; United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), cert. denied, __S. Ct.__, 2008 WL
227315, (June 23, 2008) (No. 07-8978). Nothing in the record suggests that the
district court was constrained by this court’s precedent from considering all of
Hernandez-Vasquez’s arguments for a nonguidelines sentence. Accordingly,
there was no plain error. See Campos-Maldonado, 2008 WL 2357364 at *2.
      Hernandez-Vasquez also contends that his sentence is substantively
unreasonable because there is no empirical support for U.S.S.G. § 2L1.2, the
Guideline mandating the COV increase. He did not challenge the empirical
grounds for § 2L1.2 in the district court, so his contention is reviewed for plain

                                        2
                                   No. 07-40759

error. See Campos-Maldonado, 2008 WL 2357364 at *2. Nothing in the record
suggests that the district court believed that it was precluded by circuit
precedent from imposing a lesser sentence in the face of § 2L1.2. Moreover, pre-
Gall precedent did not prevent a district court from giving a lower sentence than
advised by § 2L1.2. See id.; United States v. Gomez-Herrera, 523 F.3d 554, 557
n. 1 (5th Cir. 2008), petition for cert. filed (July 2, 2008)(No. 08-5226).
      Hernandez-Vasquez shows no plain error. The district court’s judgment
is AFFIRMED.




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