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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50545

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

HECTOR HERNANDEZ-LUNA,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:08-CR-867-1

Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Hector Hernandez-Luna pleaded guilty to one count of illegal reentry. The

district court imposed a sentence of 37 months, the highest in Hernandez-Luna’s

guidelines range of imprisonment.

Hernandez-Luna argues that his sentence is substantively unreasonable

and greater than necessary to meet 18 U.S.C. § 3553(a)’s sentencing goals

because (1) his criminal history was taken into account twice in determining his

guidelines range of imprisonment, (2) his offense was not violent, and (3) his

United States Court of Appeals

Fifth Circuit

F I L E D

January 8, 2010

Charles R. Fulbruge III

Clerk

Case: 09-50545 Document: 0051999665 Page: 1 Date Filed: 01/08/2010
No. 09-50545

2

motive for reentry was to assist his common law wife, who was facing eviction.

In reviewing a sentence, we normally “consider[] the ‘substantive reasonableness

of the sentence imposed under an abuse-of-discretion standard.’” United States

v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (quoting Gall v. United

States, 552 U.S. 38, 51 (2007)). However, Hernandez-Luna did not object in the

district court to the reasonableness of his sentence, so our review is for plain

error. See United States v. Anderson, 559 F.3d 348, 358 (5th Cir.), cert. denied,

129 S. Ct. 2814 (2009).

A plain error is a forfeited error that is clear or obvious and affects the

defendant’s substantial rights. United States v. Mondragon-Santiago, 564 F.3d

357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). When those elements are

shown, this court has the discretion to correct the error only if it “seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

(citation omitted).

The district court explained that it selected what it determined to be a

sufficient sentence after considering the advisory Guidelines and their policy

statements, the other 18 U.S.C. § 3553(a) factors, the allocution of the parties,

and the factual information contained in the presentence report. The district

court explained to Hernandez-Luna that it began the sentencing proceeding with

the intent to give him an above-guidelines sentence after concluding that his

motive for reentry was drug distribution, but after hearing Hernandez-Luna’s

sentencing arguments, the district court concluded that a within-guidelines

sentence was sufficient. Hernandez-Luna has not rebutted the presumption that

his within-guidelines sentence was reasonable, see United States v. Alonzo, 435

F.3d 551, 554 (5th Cir. 2006), nor has he demonstrated plain error, see

Mondragon-Santiago, 564 F.3d at 361. The judgment of the district court is

AFFIRMED.

Case: 09-50545 Document: 0051999665 Page: 2 Date Filed: 01/08/2010