IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 1, 2009
No. 08-51133
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARCOS ANTONIO HERNANDEZ-HERNANDEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-1161-ALL
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Marcos Antonio Hernandez-Hernandez appeals the 70-month sentence
imposed following his guilty plea conviction for illegal reentry. He asserts that
the district court erroneously calculated his advisory sentencing guidelines
range because it increased his base offense level and his criminal history score
based on a New Mexico state court conviction of robbery that was committed
when he was 15 years old. He contends also that the sentence imposed was
*
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should not be published and is not precedent except under the limited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. 08-51133
substantively unreasonable because the district court did not consider the 18
U.S.C. § 3553(a) factors properly and imposed a significant upward variance.
Because Hernandez-Hernandez objected to the offense level and criminal
history enhancements in the district court, our review of his challenges to the
enhancements is de novo. See United States v. Klein, 543 F.3d 206, 213 (5th Cir.
2008), cert. denied, 129 S. Ct. 1384 (2009). We must decide whether the district
court committed any procedural errors, “such as failing to calculate (or
improperly calculating) the Guidelines range, 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.”
Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 594, 597 (2007).
In accordance with U.S.S.G. § 2L1.2, the district court properly increased
Hernandez-Hernandez’s offense level based on his New Mexico robbery
conviction because he was subject to adult penalties and was sentenced to three
years of imprisonment. See also § 2L1.2, comment. (n.1(A)(iv)). Additionally,
U.S.S.G. § 4A1.2 authorized the addition of three criminal history points. See
§ 4A1.2, comment. (n.7). Hernandez-Hernandez did not present any information
to rebut the accuracy of the information in the presentence report; accordingly,
the district court did not err in relying on that information. See United States
v. Ford, 558 F.3d 371, 377 (5th Cir. 2009). Hernandez-Hernandez has not shown
that the district court committed procedural error in the application of the
Guidelines. See Klein, 543 F.3d at 213.
Moreover, the record demonstrates that even if the district court had erred
by applying the increases, the alleged error would not require reversal; the
record shows that the district court intended to and did impose a valid,
nonguidelines, alternative sentence. See United States v. Bonilla, 524 F.3d 647,
656 (5th Cir. 2008), cert. denied, 129 S. Ct. 904 (2009). After it considered the
nature and circumstances of the offense and Hernandez’s criminal history and
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No. 08-51133
characteristics, the district court explained that a 70-month sentence was fair
and reasonable. The district court thus considered the § 3553(a) factors.
AFFIRMED.
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