     Case: 09-41009   Document: 00511180302   Page: 1   Date Filed: 07/21/2010




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

                                                FILED
                                                                July 21, 2010
                                No. 09-41009
                              Summary Calendar                  Lyle W. Cayce
                                                                     Clerk

UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee

v.

VICTOR ALEJO-HERNANDEZ,

                                          Defendant-Appellant

                         ------------------------

consolidated with:


                                No. 09-41023
                              Summary Calendar


UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee

v.

VICTOR ALEJO-HERNANDEZ,

                                          Defendant-Appellant
   Case: 09-41009       Document: 00511180302 Page: 2             Date Filed: 07/21/2010
                                    No. 09-41009
                                  c/w No. 09-41023


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:09-CR-501-1
                             USDC No. 2:09-CR-738-1


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
       Victor Alejo-Hernandez (Alejo) appeals following his guilty-plea conviction
of, and sentence for, illegal reentry and the concomitant revocation of his
supervised release related to a prior conviction for illegal reentry. Alejo was
sentenced to 93 months of imprisonment and three years of supervised release
for the most recent illegal reentry conviction and a consecutive 24-month term
of imprisonment for violating his supervised release. Alejo argues that the
district court failed to adequately explain why it rejected his arguments for a
lower sentence and credit for acceptance of responsibility and why it imposed the
statutory maximum sentence for the supervised release violation. Alejo also
argues that the 117-month total sentence was greater than necessary to achieve
the sentencing goals of 18 U.S.C. § 3553(a).
       Sentences are reviewed for reasonableness under an abuse-of-discretion
standard. United States v. Gall, 552 U.S. 38, 51 (2007). First, we must ensure
that the district court did not procedurally err by “failing to adequately explain
the chosen sentence.” Id. If the sentence is procedurally sound, we then review
the substantive reasonableness of the sentence.                  Id.    A presumption of
reasonableness applies to a within-guidelines sentence.                   United States v.
Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). We review revocation



       *
         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.

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   Case: 09-41009     Document: 00511180302 Page: 3         Date Filed: 07/21/2010
                                  No. 09-41009
                                c/w No. 09-41023

sentences under “(a) both the ‘plainly unreasonable’ and the Booker
unreasonableness standards of review . . . [and] (b) the more exacting Booker
unreasonableness standard.” United States v. McKinney, 520 F.3d 435, 428 (5th
Cir. 2008).
      Because Alejo did not object to the adequacy of the district court’s
explanation for either sentence, his claims of procedural error are subject to
plain error review. See United States v. Mondragon-Santiago, 564 F.3d 357, 361
(5th Cir.), cert. denied, 130 S. Ct. 192 (2009). Both sentences were within the
guidelines ranges, and Alejo fails to show how an adequate explanation would
have changed either sentence. Therefore, he has failed to show that the error,
if any, affected his substantial rights. See id.
      Alejo has also not shown that the district court committed error, plain or
otherwise, by imposing a substantively unreasonable sentence. See Gall, 552
U.S. at 51. The record in this case provides sufficient justification for the district
court’s implicit determination that a 93-month sentence was necessary to afford
adequate deterrence to criminal conduct and to protect the public from Alejo’s
future crimes. See § 3553(a)(2)(B), (C).
      To the extent that Alejo argues that the 24-month revocation sentence
magnifies the unreasonableness of his 93-month sentence, a revocation sentence
based on a separate conviction has no bearing on the reasonableness of the
sentence imposed for the most recent conviction. See United States v. Lopez-
Velasquez, 526 F.3d 804, 808-09 (5th Cir. 2008). The 24-month revocation
sentence was within the guidelines range and statutory maximum, and the
consecutive nature of the sentence is expressly authorized by the Guidelines.
See § 3583(e)(3); U.S.S.G. §§ 7B1.4(a), 7B1.3(f).
      As Alejo acknowledges, his arguments that the presumption of
reasonableness      should   not   apply   because    U.S.S.G.    §   2L1.2   is   not
empirically-based and that he can satisfy the third and fourth prongs of the


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  Case: 09-41009   Document: 00511180302 Page: 4      Date Filed: 07/21/2010
                               No. 09-41009
                             c/w No. 09-41023

plain error test without showing any effect on the length of his sentence are
foreclosed by Mondragon-Santiago, 564 F.3d at 361, 365-67.
     The judgments of the district court are AFFIRMED.




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