United States v. Candelario Hernandez-Rodriguez

Case: 15-50229 Document: 00513317701 Page: 1 Date Filed: 12/22/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-50229 FILED
Summary Calendar December 22, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,

Plaintiff-Appellee

CANDELARIO HERNANDEZ-RODRIGUEZ, also known as El Gorras,

Defendant-Appellant

Cons. w/No. 15-50230

UNITED STATES OF AMERICA,

Plaintiff-Appellee

CANDELARIO HERNANDEZ-RODRIGUEZ,

Defendant-Appellant

Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:10-CR-527-1
USDC No. 2:14-CR-810-1
Case: 15-50229 Document: 00513317701 Page: 2 Date Filed: 12/22/2015

No. 15-50229 c/w 15-50230

Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Following Candelario Hernandez-Rodriguez’s guilty plea to illegal
reentry after deportation, the district court sentenced him to 70 months in
prison. The district court also revoked a term of supervised release that had
been imposed following Hernandez-Rodriguez’s 2011 conviction for
transporting illegal aliens and imposed a consecutive 12-month sentence. In
this consolidated appeal, Hernandez-Rodriguez asserts that his aggregate 82-
month sentence is procedurally and substantively unreasonable. Specifically,
he contends that a 2007 alien transportation conviction was improperly used
multiple times to enhance the offense levels and the criminal history categories
at sentencing for both the 2011 alien transportation and the illegal reentry
convictions. In addition, he maintains that the 2011 conviction resulted in
multiple criminal history points and that the district court improperly relied
upon the prior alien transportation convictions as justification to run the
sentences consecutively. Hernandez-Rodriguez asserts that the guidelines and
advisory policy statement ranges resulted in a greater-than necessary
sentence, particularly in light of the mitigating circumstances and benign
motives for his return to the United States.
We review sentences for reasonableness, first ensuring that the
sentencing court committed no significant procedural error, such as
miscalculating the applicable guidelines range, and then reviewing the
substantive unreasonableness of the sentence under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 49-51 (2007). However,

* 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.

2
Case: 15-50229 Document: 00513317701 Page: 3 Date Filed: 12/22/2015

No. 15-50229 c/w 15-50230

because Hernandez-Rodriguez did not object to the guidelines calculations or
to his sentences on the grounds he now raises, we review his claims for plain
error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). To
establish plain error, Hernandez-Rodriguez must show a forfeited error that is
clear or obvious and that affects his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes such a showing, this court has
the discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
Hernandez-Rodriguez’s challenge to the double-counting of his prior
convictions does not constitute either a procedural or substantive sentencing
error, as the guidelines at issue do not forbid the consideration of prior
convictions to enhance both the offense level and the criminal history category.
See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); United States
v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001). Moreover, his general
disagreement with the propriety of his sentence and the district court’s
weighing of the 18 U.S.C. § 3553(a) factors is insufficient to rebut the
presumption of reasonableness that attaches to a within-guidelines sentence.
See Gall, 552 U.S. at 51; United States v. Cooks, 589 F.3d 173, 186 (5th Cir.
2009). Hernandez-Rodriguez has not demonstrated that the district court
plainly erred by sentencing him to a within-guidelines aggregate sentence of
82 months in prison. See Gall, 552 U.S. at 51; Peltier, 505 F.3d at 391-92.
Consequently, the judgment of the district court is AFFIRMED.