Case: 12-10230 Document: 00512100234 Page: 1 Date Filed: 01/03/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 3, 2013
No. 12-10230
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FLAVIO HERNANDEZ-CABALLERO,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:11-CR-35-1
Before WIENER, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
Flavio Hernandez-Caballero appeals the sentence imposed for his
conviction for illegal reentry into the United States. He argues that his sentence
is procedurally and substantively unreasonable because the district court
imposed a two-year term of supervised release, notwithstanding that U.S.S.G.
§ 5D1.1(c) provides that supervised release “ordinarily” should not be imposed
“in a case in which supervised release is not required by statute and the
defendant is a deportable alien who likely will be deported after imprisonment.”
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10230 Document: 00512100234 Page: 2 Date Filed: 01/03/2013
No. 12-10230
Hernandez-Caballero contends that the district court, in imposing supervised
release, relied on the prohibited factor of punishment. Because Hernandez-
Caballero did not raise this objection in the district court, review is limited to
plain error. See United States v. Dominguez-Alvarado, 695 F.3d 324, 328 (5th
Cir. 2012); Puckett v. United States, 556 U.S. 129, 135 (2009).
The record reflects that the district court was aware of the provisions of
§ 5D1.1(c). Given the statements that the district court made when it imposed
the sentence, which addressed Hernandez-Caballero’s history and characteristics
and the need for deterrence and protection, Hernandez-Caballero fails to show
that the district court procedurally erred by relying on the prohibited factor of
punishment in imposing the term of supervised release. See Dominguez-
Alvarado, 695 F.3d at 329-30. Additionally, given that the district court relied
upon the permissible factors of deterrence and protection in imposing the term
of supervised release, Hernandez-Caballero’s argument that his sentence is
substantively unreasonable because it gives significant weight to an “improper
factor” also fails. The judgment of the district court is thus AFFIRMED.
2