     Case: 16-40905      Document: 00513997648         Page: 1    Date Filed: 05/18/2017




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

                                    No. 16-40905                               FILED
                                  Summary Calendar                         May 18, 2017
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RAFAEL HERNANDEZ-SORIANO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:15-CR-1415-1


Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Rafael Hernandez-Soriano appeals his 50-month within-guidelines
sentence for illegally reentering the United States after deportation.                            He
contends that the district court committed procedural error by failing to
recognize that it had the authority to grant his motion for a downward variance
based on a then-pending amendment to U.S.S.G. § 2L1.2. See United States v.
Clay, 787 F.3d 328, 332 (5th Cir. 2015).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40905    Document: 00513997648     Page: 2   Date Filed: 05/18/2017


                                 No. 16-40905

      Hernandez-Soriano’s argument is predicated on the district court’s
statement at sentencing that it was bound to apply the version of the
Guidelines then in effect, which predated the effective date of the amendment
in question. However, the court made that statement, which is a correct
statement of law, United States v. Rodarte-Vasquez, 488 F.3d 316, 322 (5th Cir.
2007), in response to Hernandez-Soriano’s request for a continuance until after
the effective date of the amendment.        While the statement is not truly
responsive to the continuance request, it does not suggest a belief by the
district court that it had no discretion to grant a downward variance in light of
the pending amendment. Rather, the district court made an individualized
assessment, taking into account Hernandez-Soriano’s mitigation arguments,
the 18 U.S.C. § 3553(a) factors, the Sentencing Guidelines, and Hernandez-
Soriano’s criminal history, which, the court noted, includes a very serious
federal drug distribution conviction.       Considering all of the relevant
information, the court determined that 50 months was an appropriate sentence
and thus denied the requested variance. Accordingly, Hernandez-Soriano has
shown no error, plain or otherwise.
      Because there is no support for Hernandez-Soriano’s contention that the
district court actually made the error he complains of, the judgment of the
district court is AFFIRMED.




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