IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 18, 2009
No. 08-50314
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DAVID PENA-HERNANDEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-2835-ALL
Before HIGGINBOTHAM, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
David Pena-Hernandez appeals the sentence imposed following his guilty
plea conviction of attempted illegal reentry after deportation. He was sentenced
to 36 months of imprisonment and three years of supervised release. Pena-
Hernandez first argues that his sentence must be vacated because the district
court committed a significant procedural error by failing to explain the bases for
the imposed sentence. Plain error review is applicable to this issue because
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-50314
Pena-Hernandez failed to object on this basis in district court. See United States
v. Mondragon-Santiago, 564 F.3d 357, 363-64 (5th Cir. 2009), petition for cert.
filed (June 24, 2009) (No. 08-11099).
At sentencing, Pena-Hernandez requested the “least possible sentence”
based upon various factors, including his age, work history, family location, and
medical reasons. Although it imposed a within-guidelines sentence, the district
court provided no specific explanation for its implicit rejection of Pena-
Hernandez’s request for a lesser sentence and made no mention of the 18 U.S.C.
§ 3553(a) factors. Thus, “the district court failed to adequately explain its
reasons for the sentence imposed as required by § 3553(c), which is error.” Id.
at 364. This error “is also plain, or obvious,” as “the law requiring courts to
explain sentences is clear.” Id. Nonetheless, Pena-Hernandez is not entitled to
relief on this issue, as he has failed to show that the error affected his
substantial rights. See id. at 365. Pena-Hernandez has not shown that his
sentence is procedurally unreasonable. See id.; see also Gall v. United States,
128 S. Ct. 586, 597 (2007).
Pena-Hernandez contends that the imposed sentence was substantively
unreasonable because it was greater than necessary to accomplish the goals set
forth in § 3553(a) and because his prior conviction for obstruction was double-
counted. He also asserts that the presumption of reasonableness that this court
normally applies to within-guidelines sentences is inapplicable to his sentence
because U.S.S.G. § 2L1.2, the Guideline used to calculate his advisory guidelines
range, is not empirically supported.
Pena-Hernandez’s challenge to the presumption of reasonableness is
foreclosed by this court’s holding in Mondragon-Santiago, 564 F.3d at 366-67,
which was issued after he filed his appellate brief. Accordingly, his sentence is
afforded a presumption of reasonableness. See id. Additionally, the sentence
was correctly calculated, and there was no impermissible double counting. See
U.S.S.G. § 2L1.2(b)(1) & application note 6. Pena-Hernandez has not shown
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No. 08-50314
sufficient reason for this court to disturb the sentence imposed by the district
court.
The district court’s judgment is AFFIRMED.
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