IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 6, 2009
No. 07-41171
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
VICTOR TOMAS MENDEZ-HERNANDEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-940-ALL
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Victor Tomas Mendez-Hernandez pleaded guilty to illegal re-entry of a
removed alien, in violation of 8 U.S.C. § 1326. He was sentenced, inter alia, at
the low end of the advisory sentencing-guidelines range to 57-months’
imprisonment. He contends his sentence is excessive and this court should
remand to district court both for resentencing and to correct a clerical error in
the judgment.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-41171
Although post-Booker, the Sentencing Guidelines are advisory only, and
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 on the sentence to impose. Gall v. United States, 128
S.Ct. 586 (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).
Mendez contends this case should be summarily remanded for
resentencing because the Supreme Court’s decisions in Gall and Kimbrough v.
United States, 128 S.Ct. 558 (2007), “have drastically altered the legal landscape
of federal sentencing from that which existed when Mr. Mendez-Hernandez was
sentenced”. He contends the sentence was unreasonable in any event because
(1) the district court failed to properly consider the nature and circumstances of
the offense and the history and characteristics of the defendant, as required
under 18 U.S.C. § 3553(a)(1); (2) the district court failed to properly consider its
authority to depart downward under the Guidelines, as required under
§§ 3553(a)(4) and (5); and (3) the guidelines sentence imposed was unreasonably
harsh.
Mendez did not contend in the district court that this court’s post-Booker,
pre-Gall/Kimbrough decisions were contrary to the Supreme Court’s rationale
in Booker. Accordingly, we review this contention only for plain error.
See United States v. Rodriguez-Rodriguez, 530 F.3d 381, 387-88 (5th Cir. 2008).
Nothing in the record suggests that the district court felt constrained by this
court’s post-Booker precedent from considering all of Mendez’ bases for a more
lenient sentence . See id. at 388; United States v. Campos-Maldonado, 531 F.3d
337, 338-39 (5th Cir.), cert. denied, 129 S.Ct. 328 (2008). Instead, the record
reflects that the district court imposed a guidelines sentence because it was
2
No. 07-41171
appropriate, given Mendez’ recidivism and because of the need to deter him from
future criminal conduct. Mendez’ bases for a non-guidelines sentence were
considered and rejected. The district court gave due consideration to the nature
and circumstances of the offense and to the history and characteristics of the
defendant.
Because Mendez was sentenced within the guideline sentencing range, the
sentence is presumptively reasonable. See United States v. Alonzo, 435 F.3d 551,
554 (5th Cir. 2006). Mendez has not shown that the district court would have
departed from the guidelines but for this court’s pre-Gall precedent. On the
contrary, the district court specifically noted that previous, shorter sentences
had not deterred Mendez from illegally reentering the United States. No error
has been shown, plain or otherwise. See Campos-Maldonado, 531 F.3d at 339;
Rodriguez-Rodriguez, 530 F.3d at 388. Nor has Mendez shown that the district
court abused its discretion by failing, according to Mendez, to give proper
consideration to the § 3553 factors or by imposing an unreasonably harsh
sentence. See Gall, 128 S. Ct. at 596-97.
Mendez also contends that the case should be remanded for correction of
the judgment under Federal Rule of Criminal Procedure 36 because the
judgment does not reflect the correct offense of conviction. According to Mendez,
the judgment should reflect that he was convicted for being found unlawfully in
the United States, as was charged in the indictment, and not “Re-entry of a
deported alien,” as it currently reads. This contention was rejected in United
States v. Buendia-Rangel, 2008 WL 4155420 at *1 (5th Cir. 9 Sep., 2008) (No.
07-40879; unpublished).
AFFIRMED.
3