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

                                                                            FILED
                                                                           June 20, 2011
                              No. 09-40894 c/w 09-40900
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

v.

GERONIMO HERNANDEZ-HERRERA,

                                                  Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                   USDC Nos. 1:03-CR-00431 & 1:09-CR-678-1


Before SMITH, DeMOSS, and OWEN, Circuit Judges.
PER CURIAM:*
       Geronimo Hernandez-Herrera appeals from the sentence imposed as a
consequence of his conviction under 8 U.S.C. § 1326(a) and (b)(1) for illegally
reentering this country after he had been previously deported as an alien
following a conviction for a felony offense. He also appeals the sentence imposed
following the revocation of his supervised release related to a prior illegal
reentry conviction. He argues that the sentences are procedurally unreasonable
because the district court failed to explain its sentencing decision adequately and



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                           No. 09-40894 c/w 09-40900

that the sentences are substantively unreasonable because they are greater than
necessary in light of the 18 U.S.C. § 3553(a) sentencing factors. We affirm.
                                        I
      In 2003, Hernandez-Herrera pleaded guilty to the crime of illegal reentry
by a previously deported alien following a conviction for an aggravated felony
offense, in violation of 8 U.S.C. § 1326(a) and (b)(2). He was sentenced to a term
of imprisonment of sixty-three months, to be followed by a three-year term of
supervised release. He began his term of supervised release in 2007, at which
time he was also deported to Mexico.
      Eighteen months later, in 2009, Hernandez-Herrera was arrested in
Brownsville, Texas. He subsequently was charged with the crime of illegal
reentry of a previously deported alien following a conviction for a felony offense,
in violation of 8 U.S.C. § 1326(a) and (b)(1). Additionally, the United States
Probation Office, claiming that Hernandez-Herrera’s 2009 illegal reentry
violated the terms of his supervised release, filed a petition to revoke his
supervised release.
      Hernandez-Herrera pleaded guilty to the 2009 illegal reentry charge, and
the district court ordered the United States Probation Office to prepare a
presentence investigation report (PSR). The PSR assigned Hernandez-Herrera
a base offense level of eight for the illegal reentry offense. He then received a
sixteen-level enhancement, under § 2L1.2(b)(1)(A) of the U.S. Sentencing
Guidelines Manual (Guidelines), for a prior felony drug trafficking offense and
a three-level downward adjustment for acceptance of responsibility, leaving him
with a total offense level of 21. After combining his offense level with his
category V criminal history, Hernandez-Herrera’s applicable Guidelines range
for the 2009 illegal reentry offense was seventy to eighty-seven months of
imprisonment. The PSR also included the Probation Office’s determination that



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                          No. 09-40894 c/w 09-40900

it had “not identified any authorized factors concerning the offense or the
offender that would warrant departure from the advisory guideline range.”
      Hernandez-Herrera did not object to the PSR, but he did file a motion for
a variance or downward departure in which he raised three arguments. First,
he noted that his teenage son was suffering from mental and behavioral
problems and was not attending school, and that a state juvenile court had
determined that his son was in need of rehabilitation after it found that the son
had engaged in delinquent conduct. He claimed that he had reentered the
United States in order to help his son. Second, he requested a departure under
§ 5K2.11 of the Guidelines, which provides that a reduced sentence may be
appropriate when a defendant commits a crime in order to avoid a perceived
greater harm. Finally, he argued that his Guidelines sentence was greater than
necessary to satisfy the 18 U.S.C. § 3553(a) factors.
      The district court subsequently held a revocation and sentencing hearing
during which it considered both the Probation Office’s petition to revoke
Hernandez-Herrera’s supervised release with respect to his 2003 illegal reentry
conviction and his sentence for his 2009 illegal reentry conviction. The district
court began the hearing by obtaining Hernandez-Herrera’s plea with respect to
the Probation Office’s allegation that his conduct had violated the terms of his
supervised release; he pleaded true to those allegations. The district court then
proceeded to hear the parties’ arguments as to Hernandez-Herrera’s sentence for
his new reentry conviction.
      Hernandez-Herrera’s counsel began by introducing the state juvenile court
records for Hernandez-Herrera’s son. Counsel submitted that Hernandez-
Herrera’s son was not attending school, was suicidal, and was beyond the control
of the boy’s mother.     Counsel argued that Hernandez-Herrera “felt an
overwhelming frustration that he had to do something for his son, so he crossed.”
Counsel also noted that Hernandez-Herrera stopped drinking in 2003, had not


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                          No. 09-40894 c/w 09-40900

been drinking since then, and had “been working pretty hard across doing what
he could to help his family.” Counsel also reiterated Hernandez-Herrera’s
request for a § 5K2.11 departure, arguing that he reentered the United States
“in order to prevent a greater harm, which he believed was the absolute risk to
his son.” Hernandez-Herrera ultimately requested “that any sentence on the
revocation be run concurrent” and “that the Court consider that a sentence with
perhaps 12 months even on the reentry be sufficient.” After hearing counsel’s
arguments, the district court engaged in the following exchange with counsel:
            THE COURT: Well, Mr. Wilde, tell me, what would be
            your client’s proposal should I grant a variance and—I
            mean, there still has to be the issue of attention that
            this young man needs. Is he going to try to come back
            again? I mean, is that the only alternative that he and
            his spouse feel is going to make a difference for this boy,
            or is it going to be more of the same or what?
            MR. WILDE: I wish I had the answer to that, Your
            Honor. I think it’s an impossible situation for the
            Court, for Mr. Hernandez, for his wife, and especially
            for his son and daughters. It’s a tragic, to me a tragic
            and impossible situation. Maybe Mr. Hernandez could
            address that better than I could, Your Honor. I
            wouldn’t want to be in Mr. Hernandez’ shoes, I mean,
            his position, having to face this. I think it’s a tragedy,
            Your Honor. I think Mr. Hernandez could probably
            address that better than I could, what he could expect
            to do for his son at this point.
      For its part, the Government opposed any departure or variance from the
Guidelines range. The Government argued that Hernandez-Herrera’s situation
did not differ significantly from the situations confronting many defendants who
commit illegal reentries. The Government also suggested that his son’s troubles
might be attributable to Hernandez-Herrera’s own conduct, insofar as he served
as a poor role model for the boy. The Government ultimately requested a
seventy-eight month sentence for Hernandez-Herrera’s 2009 illegal reentry


                                        4
                            No. 09-40894 c/w 09-40900

conviction and a consecutive eighteen-month sentence for his supervised release
violation.
      After hearing the Government’s arguments, the district court made the
following observation:
              THE COURT: All right. Well, the fact is, the bottom
              line, anybody who is under the supervision of the Court
              is to if ordered or required to refrain from associating
              with people who are committing crimes, you know, if
              his father were here his father would be committing a
              crime. I mean, it is definitely a lose/lose situation.
The court then asked Hernandez-Herrera if he had anything to say to the court,
to which he responded:
              DEFENDANT HERNANDEZ: As far as my time goes
              just to reduce my time, which is the only thing. I don’t
              really know how to speak. My intention was to call up
              and see them—my work is in Matamoros—just because
              of (indiscernible) problems. I had no intention of ever
              coming here to stay. My work is in Matamoros and I
              didn’t have any intention to stay. Just to see them and
              deal with this problem they were having. That’s all.
      The district court ultimately imposed a seventy-month sentence for
Hernandez-Herrera’s 2009 conviction.         The court provided the following
explanation for that sentence:
              Sir, this sentence is in conformance with the Sentencing
              Reform Act of 1984. That is, the sentence in 09-CR-678.
              As the justification for the sentence the Court adopts
              the findings in the presentence report. The Court also
              relies on the evidence in Government’s Exhibit #1 as
              the basis for the sentence.
The district court also imposed an eighteen-month revocation sentence for
Hernandez-Herrera’s violations of the terms of his supervised release, which it
ordered would run eight months consecutively and ten months concurrently to
his new seventy-month sentence. The court explained the revocation sentence
as follows:

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                             No. 09-40894 c/w 09-40900

             As for the [revocation sentence], the Court relies on the
             nature of the allegations of which it has found you in
             violation as the basis for the revocation in its order of a
             sanction of 18 months. The Court relies on the nature
             of the allegations as a basis for it, order[s] that it be
             served partially consecutively and partially
             concurrently.
Hernandez-Herrera then objected to the district court’s sentencing decisions on
the ground that the “sentence is more than is necessary . . . in that there has not
been a sufficient explanation of the reasonableness of the sentence for this
particular sentence.”
      Hernandez-Herrera separately appealed the revocation sentence and the
original sentence for the 2009 illegal reentry. The Federal Public Defender filed
a motion to withdraw in the appeal from the revocation sentence, citing Anders
v. California and claiming that the appeal did not present a nonfrivolous legal
question. This court denied the motion after our review of the record revealed
nonfrivolous issues regarding the revocation sentence:
             (1) whether the court was required to give reasons for
             the revocation sentence and, if so, whether the reasons
             given were adequate, and (2) whether a revocation
             sentence is reviewed under the unreasonable or plainly
             unreasonable standard and whether the sentence
             satisfies the appropriate standard.
We then consolidated both appeals and ordered the Federal Public Defender to
file a brief on the merits addressing the above issues. We have jurisdiction over
these appeals pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                           II
      We begin by addressing Hernandez-Herrera’s challenges to the seventy-
month sentence imposed for his 2009 illegal reentry conviction. We review such
a sentence for reasonableness using an abuse of discretion standard.1                  In

      1
         United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir.) (citing Gall v.
United States, 552 U.S. 38 (2007)), cert. denied, 130 S. Ct. 192 (2009).

                                            6
                                No. 09-40894 c/w 09-40900

conducting this review, we first determine whether the district court erred
procedurally “by, for example, miscalculating or failing to calculate the
sentencing range under the Guidelines, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence.”2 “If the
sentence is procedurally sound, we then consider the ‘substantive reasonableness
of the sentence imposed under an abuse-of-discretion standard.’”3 “[A] sentence
within the Guidelines range is presumed reasonable on appeal.”4 “In exercising
this bifurcated review process, we continue to review the district court’s
application of the Guidelines de novo and its factual findings for clear error.”5
                                                A
       Hernandez-Herrera argues that his sentence is procedurally unreasonable
because the district court committed “significant procedural error” by
inadequately explaining its decision to sentence him to seventy months. He
claims that he presented the district court with nonfrivolous arguments in
support of a lower sentence—“his rehabilitation and the extremely difficult
personal and family situation that [he] was facing”—but that the district court
“barely addressed these arguments at all.”6 For its part, the Government argues
that Hernandez-Herrera’s arguments were not “nonfrivolous” and that the
district court provided an adequate explanation for its sentence.




       2
           Id.
       3
         United States v. Delgado-Martinez, 564 F.3d 750, 751 (5th Cir. 2009) (quoting Gall,
552 U.S. at 51).
       4
           Mondragon-Santiago, 564 F.3d at 360.
       5
           Delgado-Martinez, 564 F.3d at 751.
       6
           Appellant’s Br. at 26-27.

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                                  No. 09-40894 c/w 09-40900

       A sentencing court “shall state in open court the reasons for its imposition
of the particular sentence.”7 We have observed that “[w]hile sentences within
the Guidelines require little explanation, more is required if the parties present
legitimate reasons to depart from the Guidelines.”8 Nevertheless, the Supreme
Court’s decision in Rita v. United States9 makes clear that even a brief
explanation for a sentencing court’s rejection of a defendant’s arguments for a
non-guidelines sentence can be sufficient. In Rita, the Court held that a
sentencing court’s explanation that a defendant’s Guidelines range was not
“inappropriate” and a sentence at the bottom of that range was “appropriate”
was “brief but legally sufficient.”10 The Court also observed that the sufficiency
of a sentencing court’s explanation presents a case-specific inquiry: “Sometimes
the circumstances will call for a brief explanation; sometimes they will call for
a lengthier explanation.”11 The ultimate question is whether the sentencing
judge has “set forth enough to satisfy the appellate court that he has considered
the parties’ arguments and has a reasoned basis for exercising his own legal
decisionmaking authority.”12
       Upon reviewing the record, we are satisfied that the district court in this
case provided a sufficient explanation for its sentencing decision. The record
reflects that the district court had before it at the sentencing hearing both the
PSR and Hernandez-Herrera’s motion for a variance or departure in which he


       7
        18 U.S.C. § 3553(c); see also Mondragon-Santiago, 564 F.3d at 362 (quoting 18 U.S.C.
§ 3553(c)).
       8
         Mondragon-Santiago, 564 F.3d at 362 (internal quotation marks and citations
omitted).
       9
           551 U.S. 338 (2007).
       10
            Id. at 358.
       11
            Id. at 357.
       12
            Id. at 356.

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                                No. 09-40894 c/w 09-40900

raised his arguments for a sentence below his Guidelines range. He reiterated
these arguments during the sentencing hearing, and the record shows that the
district court listened to each argument, posed questions to counsel, and stated
its belief that Hernandez-Herrera’s presence in the United States could not help
his son because the two would be unable to associate due to Hernandez-
Herrera’s criminal conduct. Moreover, the district court explicitly relied on the
PSR, which contained a statement by the Probation Office that it had “not
identified any authorized factors concerning the offense or the offender that
would warrant departure from the advisory guideline range,” as a justification
for its sentence. When it adopted the findings of the PSR, the district court
expressly adopted this conclusion as its own. Given the circumstances, we hold
that the district court did not procedurally err with respect to the adequacy of
its sentencing explanation.
                                               B
       We now consider the substantive reasonableness of the sentence. The
district court sentenced Hernandez-Herrera to seventy months’ imprisonment
for his 2009 illegal reentry conviction, a sentence that was within the Guidelines
range of seventy to eighty-seven months. “A presumption of reasonableness
applies to sentences that fall within the guidelines.”13 “The presumption is
rebutted only upon a showing that the sentence does not account for a factor that
should receive significant weight, it gives significant weight to an irrelevant or
improper factor, or it represents a clear error of judgment in balancing
sentencing factors.”14 On appeal, Hernandez-Herrera argues that he is entitled
to a rebuttal of the presumption of reasonableness that attached to his sentence
because the district court made a clear error in judgment by failing to take into


       13
            United States v. Ruiz, 621 F.3d 390, 394 (5th Cir. 2010).
       14
         United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert. denied, 130 S. Ct.
1930 (2010).

                                               9
                                   No. 09-40894 c/w 09-40900

account that he quit drinking alcohol in 2003 and had been working and
providing for his family.                He also claims that his compelling family
circumstances made him less culpable, and more deserving of leniency, than the
typical violator of 8 U.S.C. § 1326.
          We disagree. Hernandez-Herrera here appears simply to disagree with
the district court’s ultimate sentencing decision. Such disagreement does not
rebut the presumption of reasonableness that attached to his sentence, however.
As we have previously noted, “the sentencing judge is in a superior position to
find facts and judge their import under § 3553(a) with respect to a particular
defendant.”15 “A defendant’s disagreement with the propriety of the sentence
imposed does not suffice to rebut the presumption of reasonableness that
attaches to a within-guidelines sentence.”16 Moreover, even if we would have
sentenced Hernandez-Herrera differently in the first instance, “[t]he fact that
an appellate court may have reasonably concluded that a different sentence was
appropriate is not sufficient to justify reversal of the district court.”17 The
district court considered Hernandez-Herrera’s circumstances and arguments,
balanced them in light of the factors set forth in 18 U.S.C. § 3553(a), and
selected a sentence at the lowest end of the Guidelines range. The sentence is
not substantively unreasonable.
                                                  III
          We next address Hernandez-Herrera’s challenges to his eighteen-month
revocation sentence for violations of the terms of his supervised release. We
review sentences imposed on the revocation or modification of a supervised



          15
               United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008).
          16
               Ruiz, 621 F.3d at 398.
          17
               United States v. York, 600 F.3d 347, 361-62 (5th Cir.), cert. denied, 131 S. Ct. 185
(2010).

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                                 No. 09-40894 c/w 09-40900

release term under a “plainly unreasonable” standard.18 Under this standard,
we first assess the reasonableness of the challenged sentence by addressing its
procedural and substantive reasonableness as we would an original sentence.19
If we determine that the sentence is unreasonable, we then “consider whether
the error was obvious under existing law.”20
                                                A
       We first address whether the district court procedurally erred by
inadequately explaining its decision to impose the eighteen-month revocation
sentence.        As with original sentences, district courts must explain their
sentencing decisions in the revocation context. In United States v. Whitelaw,21
we observed that the Supreme Court’s decision in Rita “sets forth the
requirements for the statement of reasons required to support a sentence under
various circumstances” and proceeded to apply that decision in a case involving
a revocation sentence.22 Accordingly, we determine the adequacy of the district
court’s explanation of Hernandez-Herrera’s revocation sentence through
reference to Rita and our case law applying that decision. We do so, however,




       18
            See United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011).
       19
          Id. (“Under the plainly unreasonable standard, we evaluate whether the district
court procedurally erred before we consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” (internal quotation marks and citation
omitted)); see also United States v. Crudup, 461 F.3d 433, 438-39 (4th Cir. 2006) (“In
determining whether a sentence is plainly unreasonable, we first decide whether the sentence
is unreasonable. In conducting this review, we follow generally the procedural and substantive
considerations that we employ in our review of original sentences . . . with some necessary
modifications to take into account the unique nature of supervised release revocation
sentences.”).
       20
            Miller, 634 F.3d at 843.
       21
            580 F.3d 256 (5th Cir. 2009).
       22
            Id. at 261.

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                                  No. 09-40894 c/w 09-40900

with the understanding that our review of revocation sentences is generally
more deferential than our review of original sentences.23
        Here, the district court explained that it was relying “on the nature of the
allegations” that constituted Hernandez-Herrera’s supervised release violation
as the basis for his revocation sentence. The “nature and circumstances of the
offense and the history and characteristics of the defendant” is one of the
§ 3553(a) factors that a district court must consider when imposing a revocation
sentence,24 and the district court’s explanation implicitly identifies this factor as
supporting its sentencing decision.                     The district court’s explanation of
Hernandez-Herrera’s revocation sentence thus was adequate.25 The revocation
sentence is procedurally reasonable.
                                                   B
        Finally, we address the substantive reasonableness of Hernandez-
Herrera’s revocation sentence.               As with his original sentence, Hernandez-
Herrera argues that his revocation sentence is substantively unreasonable
because it is greater than necessary in light of the 18 U.S.C. § 3553(a) sentencing
factors. We disagree.
        The district court revoked Hernandez-Herrera’s supervised release after
he admitted that he committed conduct that violated 8 U.S.C. § 1326(a) and


        23
             Miller, 634 F.3d at 843.
        24
          See 18 U.S.C. § 3583(e) (“The court may, after considering the factors set forth in
section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) . . . (3) revoke a
term of supervised release, and require the defendant to serve in prison all or part of the term
of supervised release authorized by statute for the offense that resulted in such term of
supervised release without credit for time previously served on postrelease supervision . . . .”).
        25
          See United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008) (upholding a district
court’s sentencing decision in which the district court “adopted the findings, reasoning, and
Guidelines calculations of the PSR” and “rejected [the Defendant’s] request for a
below-guidelines sentence and imposed a maximum guidelines sentence, expressly stating its
belief that the sentence would ‘adequately address the objectives of punishment and
deterrence’”).

                                                   12
                                No. 09-40894 c/w 09-40900

(b)(1). A violation of 8 U.S.C. § 1326(a) and (b)(1) carries a statutory maximum
sentence of ten years of imprisonment and is a Class C felony.26 Accordingly,
Hernandez-Herrera’s conduct constituted a Grade B supervised release violation
under the Guidelines.27 Once combined with his criminal history category of V,
the violation yielded a Guidelines range of eighteen to twenty-four months of
imprisonment.28 Because the term of supervised release had been imposed
pursuant to Hernandez-Herrera’s conviction for violation of 8 U.S.C. § 1326(a)
and (b)(2), a class C felony, the statutory maximum term of imprisonment on
revocation of his supervised release was twenty-four months.29 Additionally, the
Guidelines recommend that any sentence imposed on revocation of supervised
release be served consecutively to other sentences being served by the
defendant.30
       Hernandez-Herrera’s revocation sentence of eighteen months thus rested
within his Guidelines range and below the maximum sentence allowed by
statute. We routinely uphold supervised release revocation sentences in excess
of the Guidelines range but within the statutory maximum.31 Moreover, the
district court’s decision to allow Hernandez-Herrera to serve ten months of his
revocation sentence concurrently with his other sentence was to his benefit and
supports the substantive reasonableness of the sentence.                     The revocation
sentence is substantively reasonable.



       26
            8 U.S.C. § 1326(b)(1); 18 U.S.C. § 3559(a)(3).
       27
            U.S. SENTENCING GUIDELINES MANUAL § 7B1.1(a)(2) (2008).
       28
            Id. § 7B1.4.
       29
            18 U.S.C. §§ 3559(a)(3), 3583(e)(3).
       30
            U.S. SENTENCING GUIDELINES MANUAL § 7B1.3(f) & cmt. n.4 (2008).
       31
          See United States v. Whitelaw, 580 F.3d 256, 265 (5th Cir. 2009) (citing United States
v. Jones, 182 F. App’x 343, 344 (5th Cir. 2006)).

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            No. 09-40894 c/w 09-40900

                 *      *      *
AFFIRMED.




                       14
