     Case: 18-50386    Document: 00515383100      Page: 1      Date Filed: 04/15/2020




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

                                 No. 18-50386                               FILED
                               Summary Calendar                         April 15, 2020
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

GONZALO HOLGUIN-HERNANDEZ,

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas


     ON REMAND FROM THE UNITED STATES SUPREME COURT
Before JONES, * HAYNES, and WILLETT, Circuit Judges.
PER CURIAM:
      Gonzalo Holguin-Hernandez pleaded true to the allegation that he
violated a condition of his supervised release by committing a new offense,
specifically, aiding and abetting possession of marijuana with intent to
distribute. The new offense involved over 100 kilograms of marijuana. Under
the Guidelines policy statements for this Grade A violation, Holguin-
Hernandez’s recommended range was twelve to eighteen months. The district



      *  Judge Benavides has removed himself from this case.    Judge Jones has been
substituted in his place.
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                                       No. 18-50386

court imposed a bottom-of-the-range sentence of twelve months but ordered it
to run consecutively to the sentence imposed on the new marijuana offense.
       Holguin-Hernandez appealed, arguing that his twelve-month total
sentence was greater than necessary to effectuate the sentencing goals of
18 U.S.C. § 3553(a) and was therefore unreasonable.                   Applying our well-
established prior precedent, as we are required to do, we ruled that Holguin-
Hernandez failed to raise his challenges in the district court, such that our
review was for plain error only. United States v. Holguin-Hernandez, 746 F.
App’x 403 (5th Cir. 2018) (mem.) (citing United States v. Whitelaw, 580 F.3d
256, 259–60 (5th Cir. 2009)), vacated and remanded, 140 S. Ct. 762 (2020). The
Supreme Court granted certiorari and vacated our decision, determining that
by arguing for a specific shorter sentence than he received, Holguin-Hernandez
preserved his claim of error such that plain error review was inappropriate.
Holguin-Hernandez, 140 S. Ct. at 764, 765, 767. The Court declined to decide
any further issues and remanded for our consideration consistent with its
opinion:
              We hold only that the defendant here properly
              preserved the claim that his 12-month sentence was
              unreasonably long by advocating for a shorter
              sentence and thereby arguing, in effect, that this
              shorter sentence would have proved “sufficient,” while
              a sentence of 12 months or longer would be “greater
              than necessary” to “comply with” the statutory
              purposes of punishment.
Id. at 767 (quoting 18 U.S.C. § 3553(a)).
       Our review is confined to whether the sentence is substantively
reasonable. See Gall v. United States, 552 U.S. 38, 51 (2007). Applying an
abuse of discretion standard, id., 1 we conclude that the district court did not


       1 Arguably some of Holguin-Hernandez’s specific arguments were not preserved and
are subject to plain error review. Cf. United States v. Holguin-Hernandez, 140 S. Ct. 762, 767


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                                         No. 18-50386

reversibly err in assessing this sentence. As explained above, the twelve-
month revocation sentence is within the applicable advisory Guidelines policy
statement ranges. See U.S.S.G. § 7B1.4(a). The district court’s order that the
revocation sentence run consecutively to the sentence for the new marijuana
offense is consistent with U.S.S.G. § 7B1.3(f), which provides that “[a]ny term
of imprisonment imposed upon the revocation of . . . supervised release shall
be ordered to be served consecutively to any sentence of imprisonment that the
defendant is serving.” Reviewing the district court’s remarks cited by Holguin-
Hernandez, we conclude that nothing inappropriate was considered and the
district court’s sentence was reasonable.
       The judgment of the district court is AFFIRMED.




(Alito, J., concurring) (“[W]e do not decide whether this petitioner property preserved his
particular substantive-reasonableness arguments, namely that he did not pose a danger to the public
and that a 12-month sentence would not serve deterrence purposes.”). However, because Holguin-
Hernandez would not prevail even under the less deferential abuse of discretion standard, we do
not reach that question here.

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