     Case: 12-40265       Document: 00512074188         Page: 1     Date Filed: 12/05/2012




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

                                                                            FILED
                                                                         December 5, 2012
                                     No. 12-40265
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JESUS ZAVALA HERNANDEZ, also known as Jessie Hernandez, also known
as Jesse Cabala Hernandez, also known as Jesse Sabalac Hernandez, also
known as Jesse Hernandez, also known as Juan Carlos Gonzalez-Garcia, also
known as Jesse Hernandez-Sabalac,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:11-CR-1175-1


Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
       Jesus Zavala Hernandez appeals the sentence imposed pursuant to his
guilty-plea conviction of illegal reentry into the United States. He raises three
issues.
       For his primary claim, he asserts: his sentence is procedurally and
substantively unreasonable because the district court imposed a two-year term

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40265     Document: 00512074188       Page: 2   Date Filed: 12/05/2012

                                   No. 12-40265

of supervised release, notwithstanding Guideline § 5D1.1(c)’s providing
supervised release “ordinarily” should not be imposed “in a case in which
supervised release is not required by statute and [] defendant is a deportable
alien who likely will be deported after imprisonment”.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly-preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
      Here, however, and as Hernandez concedes, he is entitled only to plain-
error review because he failed to raise in district court the claim presented here.
E.g., United States v. Dominguez-Alvarado, 695 F.3d 324, 328 (5th Cir. 2012).
For reversible plain error, he must show a plain or obvious error that affected
his substantial rights. Id. He fails to do so.
      The district court was aware of the provisions of Guideline § 5D1.1(c)
because they were provided in the presentence investigation report which the
court adopted.     Contrary to Hernandez’ claim that the court committed
procedural error by failing to explain its imposition of supervised release, the
court made statements at sentencing that addressed Hernandez’ history and
characteristics, as well as the need for deterrence. See id. at 329-30.
      Hernandez also fails to show error with regard to the substantive
reasonableness of his sentence; the court’s statements at sentencing provided
support for the imposed term of supervised release. See United States v. Cooks,
589 F.3d 173, 186 (5th Cir. 2009). Although Hernandez correctly asserts
Guideline § 5D1.1(c) advises that “ordinarily” supervised release should not be
imposed where, as here, defendant is likely to be deported after imprisonment,

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                                  No. 12-40265

“the court should [] consider imposing a term of supervised release . . . if the
court determines it would provide an added measure of deterrence and
protection”. Guideline § 5D1.1 comment 5.
      Hernandez originally asserted the court erred in failing to give notice of
its intent to depart upwardly, but he concedes that issue is foreclosed by our
court’s intervening decision in Dominguez-Alvarado, 695 F.3d at 329. He raises
the issue only to preserve it for possible further review.
      Hernandez also contends his total offense level should have been reduced
by an additional level for acceptance of responsibility under Guideline § 3E1.1(b)
because the Government refused to file the requisite motion for the reduction
due to Hernandez’ refusal to enter a plea agreement containing an appeal
waiver. Hernandez concedes this claim is foreclosed by United States v. Newson,
515 F.3d 374, 376-78 (5th Cir. 2008); he raises it only to preserve it for possible
further review. Moreover, the court provided Hernandez with a downward
variance of one level based on Newson.
      AFFIRMED.




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