     Case: 11-11202       Document: 00512100601         Page: 1     Date Filed: 01/03/2013




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

                                                                            FILED
                                                                          January 3, 2013
                                     No. 11-11202
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SAMUEL HERNANDEZ, also known as Evan Hernandez, also known as Samuel
Hernandez-Avitia, also known as Samuel Evan Hernandez,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                       for the Northern District of Texas
                             USDC No. 4:11-CR-109-1


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Samuel Hernandez was convicted of illegal reentry following deportation
and was sentenced to serve an above-guidelines term of 24 months in prison.
Additionally, the district court sentenced him to serve a one-year term of
supervised release.       In this appeal, Hernandez contends that the term of
supervised release is a sentencing variance and that the district court did not
give a sufficient explanation for its decision to impose a term of supervised


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-11202    Document: 00512100601     Page: 2   Date Filed: 01/03/2013

                                 No. 11-11202

release. As Hernandez acknowledges, his arguments are reviewed for plain
error only because they were not presented to the district court. See United
States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009); see also United
States v. Dominguez-Alvarado, 695 F.3d 324, 327-28 (5th Cir. 2012).
      To establish plain error, one must show a forfeited error that is clear or
obvious and that affects his substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009). If he makes such a showing, this court has the discretion
to correct the error but will do so only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See id. Hernandez has
not met this standard.
      Because the one-year term of supervised release imposed by the district
court was within Hernandez’s statutory and guidelines range, it was not a
sentencing variance. See Dominguez-Alvarado, 695 F.3d at 329; 18 U.S.C.
§ 3582(b)(2). When considered as a whole, the district court’s “particularized
remark[s]” at sentencing show that it wished for the sentence imposed, including
both the prison term and the supervised release term, to promote deterrence in
light of Hernandez’s history and characteristics. See Dominguez-Alvarado, 695
F.3d at 329-30. This desire justifies the imposition of a term of supervised
release and results in a sentence that is not plainly erroneous. See id.
      AFFIRMED.




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