UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4561

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CARLOS ENRIQUE HERNANDEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. Robert E. Payne, Senior

District Judge. (3:11-cr-00300-REP-1)

Submitted: March 20, 2013 Decided: April 4, 2013

Before MOTZ, DUNCAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Nia Ayanna 

Vidal, Assistant Federal Public Defender, Caroline S. Platt, 

Appellate Attorney, Richmond, Virginia, for Appellant. Neil H. 

MacBride, United States Attorney, Brian R. Hood, Assistant 

United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Carlos Enrique Hernandez, a citizen of El Salvador, 

pled guilty based on a written statement of facts to one count 

of illegal re-entry of an aggravated felon, in violation of 8 

U.S.C. §§ 1326(a), (b)(2) (2006). Hernandez asserts that his 

sentence should be vacated because he argues that the district 

court abused its discretion when it imposed an upward departure 

sentence based on the underrepresentation of his criminal 

history score, and that an upward variance was unnecessary 

because there was “nothing egregious about the facts of []his 

case [to] warrant such an extreme degree of harshness in 

sentencing.” Hernandez also asserts that the district court 

plainly erred when it imposed a three-year term of supervised 

release because the Guidelines recommend against it, and because 

he asserts that the district court failed to explain why such a 

term was necessary. Finding no error, we affirm.

We review any criminal sentence, “whether inside, just 

outside, or significantly outside the Guidelines range,” for 

reasonableness, “under a deferential abuse-of-discretion 

standard.” United States v. King, 673 F.3d 274, 283 (4th Cir.), 

cert. denied, 133 S. Ct. 216 (2012); see Gall v. United States, 

552 U.S. 38, 51 (2007). The first step in this review requires 

us to ensure that the district court committed no significant 

procedural error. United States v. Evans, 526 F.3d 155, 161 
3

(4th Cir. 2008). Procedural errors include “failing to 

calculate (or improperly calculating) the Guidelines range, 

treating the Guidelines as mandatory, failing to consider the 

[18 U.S.C.A.] § 3553(a) [(West 2000 & Supp. 2012)] factors, 

selecting a sentence based on clearly erroneous facts, or 

failing to adequately explain the chosen sentence — including an 

explanation for any deviation from the Guidelines range.” Gall, 

552 U.S. at 51.

“[I]f a party repeats on appeal a claim of procedural 

sentencing error . . . which it has made before the district 

court, we review for abuse of discretion” and will reverse 

unless we conclude “that the error was harmless.” United States 

v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). For instance, if 

“an aggrieved party sufficiently alerts the district court of 

its responsibility to render an individualized explanation” by 

drawing arguments from § 3553 “for a sentence different than the 

one ultimately imposed,” the party sufficiently “preserves its 

claim.” Id. at 578. However, we review unpreserved nonstructural sentencing errors for plain error. Id. at 576-77. 

If, and only if, this court finds the sentence procedurally 

reasonable can it consider the substantive reasonableness of the 

sentence imposed. United States v. Carter, 564 F.3d 325, 328 

(4th Cir. 2009). 
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Because Hernandez requested a within-Guidelines 

sentence, we review his seventy-two-month sentence for an abuse 

of discretion. King, 673 F.3d at 283. When the district court 

imposes a departure or variant sentence, we consider “whether 

the sentencing court acted reasonably both with respect to its 

decision to impose such a sentence and with respect to the 

extent of the divergence from the sentencing range.” United 

States v. Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 

2007). The district court “has flexibility in fashioning a 

sentence outside of the Guidelines range,” and need only “‘set 

forth enough to satisfy the appellate court that it has 

considered the parties’ arguments and has a reasoned basis’” for 

its decision. United States v. Diosdado-Star, 630 F.3d 359, 364 

(4th Cir. 2011) (quoting Rita v. United States, 551 U.S. 338, 

356 (2007)) (brackets omitted). 

“The fact that the appellate court might reasonably 

have concluded that a different sentence was appropriate is 

insufficient to justify reversal of the district court.” Gall, 

552 U.S. at 51. “This deference is due in part because the 

sentencing judge is in a superior position to find facts and 

judge their import and the judge sees and hears the evidence, 

makes credibility determinations, has full knowledge of the 

facts and gains insights not conveyed by the record.” DiosdadoStar, 630 F.3d at 366 (internal quotation marks, brackets and 
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citations omitted); see Rita, 551 U.S. at 357–58 (recognizing 

that the district court “has access to, and greater familiarity 

with, the individual case and the individual defendant before 

[the court] than the Commission or the appeals court”).

Moreover, when “a district court offers two or more 

independent rationales for its deviation [from the Guidelines 

range], an appellate court cannot hold the sentence unreasonable 

if the appellate court finds fault with just one of these 

rationales.” Evans, 526 F.3d at 165. “Picking through the 

district court’s analysis in that manner would be wholly 

inconsistent with the Supreme Court’s directives to examine the 

‘totality of the circumstances,’ and to defer to the considered 

judgment of the district court.” Id. (citations omitted). We 

have reviewed the record and have considered the parties’ 

arguments and discern no error in the district court’s decision 

to impose an upward departure sentence based on Hernandez’s 

under-representative criminal history. See U.S. Sentencing 

Guidelines Manual (“USSG”) § 4A1.3(a) (2011); see also United 

States v. Dixon, 318 F.3d 585, 588-89 (4th Cir. 2003) (noting 

that under-representative criminal history category “is an 

encouraged basis for departure”). 

We also discern no error in the district court’s 

decision to impose an upward variant sentence. To the contrary, 

the district court explicitly considered several § 3553(a) 
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factors, including: (1) the nature and circumstances of 

Hernandez’s offense; (2) the need to afford adequate deterrence 

to his criminal conduct; and (3) the need to protect the public 

from Hernandez’s future crimes. 18 U.S.C. § 3553(a). Because 

the district court identified multiple reasons for its variance, 

all of which were based on the § 3553(a) factors and related to 

the particular facts of Hernandez’s case, we conclude that the 

variance is reasonable. See King, 673 F.3d at 284 (concluding 

that upward variant sentence was reasonable as it was adequately 

supported by reference to those § 3553(a) factors that “the 

court determined required the sentence ultimately imposed”); 

Diosdado-Star, 630 F.3d at 366-67 (holding that an upward 

variant sentence six years longer than the Guidelines range was 

substantively reasonable because the district court expressly 

relied on several of the § 3553(a) factors to support the 

variance).

We also discern no error in the district court’s 

imposition of a three-year term of supervised release. Because 

Hernandez did not object regarding the imposition of his threeyear supervised release term, we review that portion of his 

sentence for plain error. Lynn, 592 F.3d at 576-77. To 

establish plain error, Hernandez must show: (1) there was 

error; (2) the error was plain; and (3) the error affected his 

substantial rights. United States v. Olano, 507 U.S. 725, 732 
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(1993). Generally, for an error to affect a defendant’s 

substantial rights, it must be prejudicial, meaning “there must 

be a reasonable probability that the error affected the 

outcome[.]” United States v. Marcus, 130 S. Ct. 2159, 2164 

(2010). In the sentencing context, an error affects substantial 

rights only if the defendant can show that the sentence imposed 

was longer than the sentence he would have received without the 

error. United States v. Hughes, 401 F.3d 540, 548 (4th Cir. 

2005). We may exercise our discretion to correct the error only 

if we are convinced that the error “seriously affect[s] the 

fairness, integrity or public reputation of judicial 

proceedings.” Olano, 507 U.S. at 732 (internal quotation marks 

omitted).

Hernandez asserts that the district court plainly 

erred because he failed to consider that, under USSG § 5D1.1(c) 

(2011), a district court “ordinarily should not impose a term of 

supervised release 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.” According to 

Hernandez, the district court was at least obligated to provide 

some explanation for imposing the maximum available term. 

We have reviewed the record and conclude that the 

district court considered the particular facts and circumstances 

of Hernandez’s case and found that an added measure of 
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deterrence was needed, especially because of Hernandez’s gang 

affiliation. The district court also explicitly indicated that 

it believed the three-year supervised release term should be 

sufficient to keep Hernandez out of the United States and to 

protect the public from his crimes. Because the district court 

considered the facts and circumstances of Hernandez’s case in 

determining his supervised release term, we conclude that its 

explanation was adequate and, thus, discern no error in the 

district court’s imposition of a three-year-term of supervised 

release.

Based on the foregoing, we affirm the district court’s 

judgment. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before this court and argument would not aid the decisional 

process. 

AFFIRMED