     Case: 14-11205      Document: 00513177693         Page: 1    Date Filed: 09/01/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-11205
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 1, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

FRANCISCO HERNANDEZ-DIAZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 2:14-CR-34-1


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Francisco Hernandez-Diaz (Hernandez) pleaded guilty pursuant to a
plea agreement to illegally reentering the United States after he had been
deported. He received a 46-month prison term, which was at the bottom of the
advisory guidelines range, to be followed by three years of supervised release.
He now challenges his prison sentence, arguing that it was procedurally and
substantively unreasonable. Because Hernandez did not object to the sentence


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                  No. 14-11205

in the district court, our review is for plain error only. See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009); United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
      The district court, in Hernandez’s view, committed procedural error
because it did not provide sufficient reasons for the sentence it selected and did
not explain why it rejected his arguments for a shorter sentence. Though the
district’s court’s discussion of the sentence was minimal, Hernandez’s
argument fails because he has not demonstrated that there is a reasonable
probability that he would have received a more lenient sentence had the court
provided a more lengthy commentary and thus has not shown that his
substantial rights were affected. See United States v. Mudekunye, 646 F.3d
281, 289 (5th Cir. 2011).
      The sentence is substantively unreasonable, Hernandez contends,
because the district court failed to account for or clearly erred in discounting
several mitigating factors, specifically, that he returned to the United States
in the hopes of becoming a kidney donor for his brother, the conduct underlying
the sexual assault conviction that formed the basis of his 16-level crime of
violence enhancement was less serious than conduct underlying a typical crime
of violence, and the “sheer happenstance” that he was prosecuted for a state
offense before his illegal reentry offense resulted in an increase in his criminal
history score.     We presume that a within-guidelines sentence, like
Hernandez’s, is reasonable. See United States v. Jenkins, 712 F.3d 209, 214
(5th Cir. 2013).
      The district court committed no clear or obvious error in sentencing
Hernandez. See Puckett v. United States, 556 U.S. 129, 135 (2009). The court
was not required to impose a lighter sentence on the basis of Hernandez’s
altruistic motive for returning to the United States. See United States v.



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                                 No. 14-11205

Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008) (refusing to disturb the
presumption of reasonableness where the defendant was motivated to illegally
reenter the United States in part because his father was ailing). Moreover, its
decision to impose special conditions of supervised release restricting
Hernandez’s access to children and ordering sex offender treatment suggests
that it disagreed with Hernandez that his sexual assault involved innocuous
conduct, and the district court is in the best position to find facts and judge
their import. See United States v. Scott, 654 F.3d 552, 555 (5th Cir. 2011).
Moreover, Hernandez pleaded guilty to the state offense that increased his
criminal history score, and nothing suggests that the timing of that guilty plea
could overcome the presumption that the sentence is reasonable.
      Hernandez’s arguments amount to a disagreement with the balance
among the sentencing factors that the district court struck, but we will not
reweigh those factors. See United States v. McElwee, 646 F.3d 328, 344-45 (5th
Cir. 2011).   Moreover, even if a different sentence could also have been
appropriate, this does not establish that the sentence imposed was
unreasonable. United States v. York, 600 F.3d 347, 361-62 (5th Cir. 2010).
Hernandez has failed to demonstrate that the district court did not consider a
factor that should have received significant weight, gave significant weight to
a factor it should have discounted, or made a clear error of judgment when it
balanced the relevant factors. See Jenkins, 712 F.3d at 214. He thus has not
rebutted the presumption that his within-guidelines sentence is reasonable,
much less has he shown that the district court committed plain error. See id.
      The final issue that Hernandez raises, that the judgment should be
modified to reflect the dismissal of the indictment, is moot because the district
court has issued an amended judgment reflecting the dismissal.
      The district court’s judgment is AFFIRMED.



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