     Case: 10-20864     Document: 00511594754         Page: 1     Date Filed: 09/07/2011




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

                                                                            FILED
                                                                        September 7, 2011
                                     No. 10-20864
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

NELSON ALBERTO HERNANDEZ, also known as Nelson Albert Hernandez,
also known as Nelson Hernandez, also known as Nelson Garcia-Hernandez,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-429-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Nelson Alberto Hernandez pleaded guilty to illegal reentry and received
a sentence of 70 months in prison, at the bottom of the applicable guidelines
range. On appeal, Hernandez argues that his sentence is unreasonable and that
he should have been granted a downward departure. He asserts that the district
court did not apply the 18 U.S.C. § 3553(a) factors properly, did not take into
account his cultural assimilation into the United States, created an unwarranted


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-20864

disparity between his sentence and those of similarly situated defendants, and
imposed a sentence that violated the Eighth Amendment’s bar against cruel and
unusual punishment. We lack jurisdiction to challenge the district court’s denial
of a downward departure, although Hernandez may still challenge his sentence
as unreasonable. United States v. Hernandez, 457 F.3d 416, 424 (5th Cir. 2006);
United States v. Nikonova, 480 F.3d 371, 375 (5th Cir. 2007), abrogation on other
grounds recognized by United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th
Cir. 2009).
      We review Hernandez’s sentence for procedural and substantive
reasonableness in light of the sentencing factors in 18 U.S.C. § 3553(a). Gall v.
United States, 552 U.S. 38, 46 (2007). If error has been preserved, an appellate
court reviewing for reasonableness “merely asks whether the trial court abused
its discretion.” Rita v. United States, 551 U.S. 338, 351 (2007). Although he
asked for a sentence below the guidelines range, Hernandez did not specifically
object to the sentence imposed. Thus, it is questionable whether he is entitled
to review for abuse of discretion or merely for plain error. See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). Because Hernandez is
unable to show either abuse of discretion or plain error, we need not decide
which standard of review applies.
      The record belies Hernandez’s assertions that the district court treated the
Guidelines as mandatory and failed to consider the § 3553(a) factors. Cf. Gall,
552 U.S. at 51 (listing these as procedural sentencing errors).         Although
Hernandez asserted that he had culturally assimilated to the United States, this
is not a mandatory basis for a departure, and the district court was not required
to accord this fact dispositive weight. United States v. Lopez-Velasquez, 526 F.3d
804, 807 (5th Cir, 2008); United States v. Rodriguez-Montelongo, 263 F.3d 429,
433-34 (5th Cir. 2001). Because Hernandez identified no similarly situated
defendant who received a lesser sentence, he has not established sentencing
disparity. See § 3553(a)(6); United States v. Smith, 440 F.3d 704, 709 (5th Cir.

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                                  No. 10-20864

2006). Hernandez’s conclusional assertion of an Eighth Amendment claim does
not warrant review. See United States v. Brace, 145 F.3d 247, 255 (5th Cir.
1998) (en banc).
      Because it was within the properly calculated guidelines range,
Hernandez’s sentence is entitled to a presumption of reasonableness. United
States v. Newsom, 515 F.3d 374, 379 (5th Cir. 2008). Moreover, the district court
considered sentencing Hernandez below the guidelines range but determined
that the record and the factors set forth in § 3553(a) called for a sentence at the
bottom of that range.     Hernandez has not shown that the district court
committed “a clear error of judgment in balancing sentencing factors.” United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert. denied, 130 S. Ct. 1930
(2010). Consequently, the judgment of the district court is AFFIRMED.




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