     Case: 12-50893       Document: 00512296182         Page: 1     Date Filed: 07/03/2013




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

                                                                            FILED
                                                                            July 3, 2013
                                     No. 12-50893
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RODOLFO HERNANDEZ-HERNANDEZ, also known as Rodolfo Hernandez,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:12-CR-243-1


Before SMITH, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Rodolfo Hernandez-Hernandez (Hernandez) appeals the district court’s
decision to vary upward to a 24-month sentence of imprisonment following his
guilty plea conviction for being found unlawfully present in the United States
following three prior deportations. He argues that the sentence is procedurally
unreasonable because the district court relied on erroneous facts concerning his
relationships with the three mothers of his five, soon to be six, children and
wrongly concluded that he was not supporting any of his children. Hernandez

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50893     Document: 00512296182     Page: 2   Date Filed: 07/03/2013

                                  No. 12-50893

showed that the district court clearly erred in determining that Hernandez was
not supporting any of his children. However, Hernandez has not disputed the
findings that he had six children with three different women between 2005 and
2012 and that he owes $17,000 in past due child support for two of the children.
Based on the correct factual findings, it was plausible for the court to determine
that Hernandez was not abiding by his legal responsibilities to provide financial
support for some of his children. See United States v Puige-Infante, 19 F.3d 929,
942 (5th Cir. 1994). Thus, Hernandez has failed to demonstrate that the
sentence was procedurally unreasonable. See United States v. Castillo, 430 F.3d
230, 238-39 (5th Cir. 2005).
      Hernandez’s argument that the variance was substantively unreasonable
is not supported by the record because the district court properly considered the
18 U.S.C. § 3553(a) factors, including the nature and circumstances of
Hernandez’s offense of illegal reentry and his history of repetitive illegal
reentries and failure to abide by child support orders that showed his lack of
respect for the law and the need to deter him from continuing the illegal
activities. See Gall v. United States, 552 U.S. 38, 51 (2007). The extent of the
variance is reasonable given that this court has affirmed substantial variances
in other cases. See United States v. Lopez-Velasquez, 526 F.3d 804, 805-07 (5th
Cir. 2008); United States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008).
      AFFIRMED.




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