     Case: 09-50545     Document: 0051999665          Page: 1     Date Filed: 01/08/2010



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

                                                                             FILED
                                                                           January 8, 2010
                                     No. 09-50545
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

HECTOR HERNANDEZ-LUNA,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:08-CR-867-1


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Hector Hernandez-Luna pleaded guilty to one count of illegal reentry. The
district court imposed a sentence of 37 months, the highest in Hernandez-Luna’s
guidelines range of imprisonment.
       Hernandez-Luna argues that his sentence is substantively unreasonable
and greater than necessary to meet 18 U.S.C. § 3553(a)’s sentencing goals
because (1) his criminal history was taken into account twice in determining his
guidelines range of imprisonment, (2) his offense was not violent, and (3) his


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50545     Document: 0051999665 Page: 2       Date Filed: 01/08/2010
                                  No. 09-50545

motive for reentry was to assist his common law wife, who was facing eviction.
In reviewing a sentence, we normally “consider[] the ‘substantive reasonableness
of the sentence imposed under an abuse-of-discretion standard.’” United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (quoting Gall v. United
States, 552 U.S. 38, 51 (2007)). However, Hernandez-Luna did not object in the
district court to the reasonableness of his sentence, so our review is for plain
error. See United States v. Anderson, 559 F.3d 348, 358 (5th Cir.), cert. denied,
129 S. Ct. 2814 (2009).
      A plain error is a forfeited error that is clear or obvious and affects the
defendant’s substantial rights. United States v. Mondragon-Santiago, 564 F.3d
357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). When those elements are
shown, this court has the discretion to correct the error only if it “seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” Id.
(citation omitted).
      The district court explained that it selected what it determined to be a
sufficient sentence after considering the advisory Guidelines and their policy
statements, the other 18 U.S.C. § 3553(a) factors, the allocution of the parties,
and the factual information contained in the presentence report. The district
court explained to Hernandez-Luna that it began the sentencing proceeding with
the intent to give him an above-guidelines sentence after concluding that his
motive for reentry was drug distribution, but after hearing Hernandez-Luna’s
sentencing arguments, the district court concluded that a within-guidelines
sentence was sufficient. Hernandez-Luna has not rebutted the presumption that
his within-guidelines sentence was reasonable, see United States v. Alonzo, 435
F.3d 551, 554 (5th Cir. 2006), nor has he demonstrated plain error, see
Mondragon-Santiago, 564 F.3d at 361. The judgment of the district court is
AFFIRMED.




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