IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40894 c/w 09-40900

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

GERONIMO HERNANDEZ-HERRERA,

Defendant–Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC Nos. 1:03-CR-00431 & 1:09-CR-678-1

Before SMITH, DeMOSS, and OWEN, Circuit Judges.

PER CURIAM:

*

Geronimo Hernandez-Herrera appeals from the sentence imposed as a

consequence of his conviction under 8 U.S.C. § 1326(a) and (b)(1) for illegally

reentering this country after he had been previously deported as an alien

following a conviction for a felony offense. He also appeals the sentence imposed

following the revocation of his supervised release related to a prior illegal

reentry conviction. He argues that the sentences are procedurally unreasonable

because the district court failed to explain its sentencing decision adequately and

United States Court of Appeals

Fifth Circuit

F I L E D

June 20, 2011

Lyle W. Cayce

Clerk

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.

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that the sentences are substantively unreasonable because they are greater than

necessary in light of the 18 U.S.C. § 3553(a) sentencing factors. We affirm.

I

In 2003, Hernandez-Herrera pleaded guilty to the crime of illegal reentry

by a previously deported alien following a conviction for an aggravated felony

offense, in violation of 8 U.S.C. § 1326(a) and (b)(2). He was sentenced to a term

of imprisonment of sixty-three months, to be followed by a three-year term of

supervised release. He began his term of supervised release in 2007, at which

time he was also deported to Mexico.

Eighteen months later, in 2009, Hernandez-Herrera was arrested in

Brownsville, Texas. He subsequently was charged with the crime of illegal

reentry of a previously deported alien following a conviction for a felony offense,

in violation of 8 U.S.C. § 1326(a) and (b)(1). Additionally, the United States

Probation Office, claiming that Hernandez-Herrera’s 2009 illegal reentry

violated the terms of his supervised release, filed a petition to revoke his

supervised release.

Hernandez-Herrera pleaded guilty to the 2009 illegal reentry charge, and

the district court ordered the United States Probation Office to prepare a

presentence investigation report (PSR). The PSR assigned Hernandez-Herrera

a base offense level of eight for the illegal reentry offense. He then received a

sixteen-level enhancement, under § 2L1.2(b)(1)(A) of the U.S. Sentencing

Guidelines Manual (Guidelines), for a prior felony drug trafficking offense and

a three-level downward adjustment for acceptance of responsibility, leaving him

with a total offense level of 21. After combining his offense level with his

category V criminal history, Hernandez-Herrera’s applicable Guidelines range

for the 2009 illegal reentry offense was seventy to eighty-seven months of

imprisonment. The PSR also included the Probation Office’s determination that

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it had “not identified any authorized factors concerning the offense or the

offender that would warrant departure from the advisory guideline range.”

Hernandez-Herrera did not object to the PSR, but he did file a motion for

a variance or downward departure in which he raised three arguments. First,

he noted that his teenage son was suffering from mental and behavioral

problems and was not attending school, and that a state juvenile court had

determined that his son was in need of rehabilitation after it found that the son

had engaged in delinquent conduct. He claimed that he had reentered the

United States in order to help his son. Second, he requested a departure under

§ 5K2.11 of the Guidelines, which provides that a reduced sentence may be

appropriate when a defendant commits a crime in order to avoid a perceived

greater harm. Finally, he argued that his Guidelines sentence was greater than

necessary to satisfy the 18 U.S.C. § 3553(a) factors.

The district court subsequently held a revocation and sentencing hearing

during which it considered both the Probation Office’s petition to revoke

Hernandez-Herrera’s supervised release with respect to his 2003 illegal reentry

conviction and his sentence for his 2009 illegal reentry conviction. The district

court began the hearing by obtaining Hernandez-Herrera’s plea with respect to

the Probation Office’s allegation that his conduct had violated the terms of his

supervised release; he pleaded true to those allegations. The district court then

proceeded to hear the parties’ arguments as to Hernandez-Herrera’s sentence for

his new reentry conviction.

Hernandez-Herrera’s counsel began by introducing the state juvenile court

records for Hernandez-Herrera’s son. Counsel submitted that HernandezHerrera’s son was not attending school, was suicidal, and was beyond the control

of the boy’s mother. Counsel argued that Hernandez-Herrera “felt an

overwhelming frustration that he had to do something for his son, so he crossed.”

Counsel also noted that Hernandez-Herrera stopped drinking in 2003, had not

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been drinking since then, and had “been working pretty hard across doing what

he could to help his family.” Counsel also reiterated Hernandez-Herrera’s

request for a § 5K2.11 departure, arguing that he reentered the United States

“in order to prevent a greater harm, which he believed was the absolute risk to

his son.” Hernandez-Herrera ultimately requested “that any sentence on the

revocation be run concurrent” and “that the Court consider that a sentence with

perhaps 12 months even on the reentry be sufficient.” After hearing counsel’s

arguments, the district court engaged in the following exchange with counsel:

THE COURT: Well, Mr. Wilde, tell me, what would be

your client’s proposal should I grant a variance and—I

mean, there still has to be the issue of attention that

this young man needs. Is he going to try to come back

again? I mean, is that the only alternative that he and

his spouse feel is going to make a difference for this boy,

or is it going to be more of the same or what?

MR. WILDE: I wish I had the answer to that, Your

Honor. I think it’s an impossible situation for the

Court, for Mr. Hernandez, for his wife, and especially

for his son and daughters. It’s a tragic, to me a tragic

and impossible situation. Maybe Mr. Hernandez could

address that better than I could, Your Honor. I

wouldn’t want to be in Mr. Hernandez’ shoes, I mean,

his position, having to face this. I think it’s a tragedy,

Your Honor. I think Mr. Hernandez could probably

address that better than I could, what he could expect

to do for his son at this point.

For its part, the Government opposed any departure or variance from the

Guidelines range. The Government argued that Hernandez-Herrera’s situation

did not differ significantly from the situations confronting many defendants who

commit illegal reentries. The Government also suggested that his son’s troubles

might be attributable to Hernandez-Herrera’s own conduct, insofar as he served

as a poor role model for the boy. The Government ultimately requested a

seventy-eight month sentence for Hernandez-Herrera’s 2009 illegal reentry

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conviction and a consecutive eighteen-month sentence for his supervised release

violation.

After hearing the Government’s arguments, the district court made the

following observation:

THE COURT: All right. Well, the fact is, the bottom

line, anybody who is under the supervision of the Court

is to if ordered or required to refrain from associating

with people who are committing crimes, you know, if

his father were here his father would be committing a

crime. I mean, it is definitely a lose/lose situation.

The court then asked Hernandez-Herrera if he had anything to say to the court,

to which he responded:

DEFENDANT HERNANDEZ: As far as my time goes

just to reduce my time, which is the only thing. I don’t

really know how to speak. My intention was to call up

and see them—my work is in Matamoros—just because

of (indiscernible) problems. I had no intention of ever

coming here to stay. My work is in Matamoros and I

didn’t have any intention to stay. Just to see them and

deal with this problem they were having. That’s all.

The district court ultimately imposed a seventy-month sentence for

Hernandez-Herrera’s 2009 conviction. The court provided the following

explanation for that sentence:

Sir,this sentence is in conformance with the Sentencing

Reform Act of 1984. That is, the sentence in 09-CR-678.

As the justification for the sentence the Court adopts

the findings in the presentence report. The Court also

relies on the evidence in Government’s Exhibit #1 as

the basis for the sentence.

The district court also imposed an eighteen-month revocation sentence for

Hernandez-Herrera’s violations of the terms of his supervised release, which it

ordered would run eight months consecutively and ten months concurrently to

his new seventy-month sentence. The court explained the revocation sentence

as follows:

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As for the [revocation sentence], the Court relies on the

nature of the allegations of which it has found you in

violation as the basis for the revocation in its order of a

sanction of 18 months. The Court relies on the nature

of the allegations as a basis for it, order[s] that it be

served partially consecutively and partially

concurrently.

Hernandez-Herrera then objected to the district court’s sentencing decisions on

the ground that the “sentence is more than is necessary . . . in that there has not

been a sufficient explanation of the reasonableness of the sentence for this

particular sentence.”

Hernandez-Herrera separately appealed the revocation sentence and the

original sentence for the 2009 illegal reentry. The Federal Public Defender filed

a motion to withdraw in the appeal from the revocation sentence, citing Anders

v. California and claiming that the appeal did not present a nonfrivolous legal

question. This court denied the motion after our review of the record revealed

nonfrivolous issues regarding the revocation sentence:

(1) whether the court was required to give reasons for

the revocation sentence and, if so, whether the reasons

given were adequate, and (2) whether a revocation

sentence is reviewed under the unreasonable or plainly

unreasonable standard and whether the sentence

satisfies the appropriate standard.

We then consolidated both appeals and ordered the Federal Public Defender to

file a brief on the merits addressing the above issues. We have jurisdiction over

these appeals pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

II

We begin by addressing Hernandez-Herrera’s challenges to the seventymonth sentence imposed for his 2009 illegal reentry conviction. We review such

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a sentence for reasonableness using an abuse of discretion standard. In

1

conducting this review, we first determine whether the district court erred

procedurally “by, for example, miscalculating or failing to calculate the

sentencing range under the Guidelines, 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.” “If the

2

sentence is procedurally sound, we then consider the ‘substantive reasonableness

of the sentence imposed under an abuse-of-discretion standard.’” “[A] sentence

3

within the Guidelines range is presumed reasonable on appeal.” “In exercising

4

this bifurcated review process, we continue to review the district court’s

application of the Guidelines de novo and its factual findings for clear error.”

5

A

Hernandez-Herrera argues that his sentence is procedurally unreasonable

because the district court committed “significant procedural error” by

inadequately explaining its decision to sentence him to seventy months. He

claims that he presented the district court with nonfrivolous arguments in

support of a lower sentence—“his rehabilitation and the extremely difficult

personal and family situation that [he] was facing”—but that the district court

“barely addressed these arguments at all.” For its part, the Government argues

6

United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir.) (citing Gall v. 1

United States, 552 U.S. 38 (2007)), cert. denied, 130 S. Ct. 192 (2009).

 Id. 2

 United States v. Delgado-Martinez, 564 F.3d 750, 751 (5th Cir. 2009) (quoting Gall,

3

552 U.S. at 51).

 Mondragon-Santiago, 564 F.3d at 360.

4

 Delgado-Martinez, 564 F.3d at 751.

5

 Appellant’s Br. at 26-27. 6

7

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that Hernandez-Herrera’s arguments were not “nonfrivolous” and that the

district court provided an adequate explanation for its sentence.

A sentencing court “shall state in open court the reasons for its imposition

of the particular sentence.” We have observed that “[w]hile sentences within

7

the Guidelines require little explanation, more is required if the parties present

legitimate reasons to depart from the Guidelines.” Nevertheless, the Supreme

8

Court’s decision in Rita v. United States makes clear that even a brief

9

explanation for a sentencing court’s rejection of a defendant’s arguments for a

non-guidelines sentence can be sufficient. In Rita, the Court held that a

sentencing court’s explanation that a defendant’s Guidelines range was not

“inappropriate” and a sentence at the bottom of that range was “appropriate”

was “brief but legally sufficient.” The Court also observed that the sufficiency

10

of a sentencing court’s explanation presents a case-specific inquiry: “Sometimes

the circumstances will call for a brief explanation; sometimes they will call for

a lengthier explanation.” The ultimate question is whether the sentencing

11

judge has “set forth enough to satisfy the appellate court that he has considered

the parties’ arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.”

12

Upon reviewing the record, we are satisfied that the district court in this

case provided a sufficient explanation for its sentencing decision. The record

18 U.S.C. § 3553(c); see also Mondragon-Santiago, 564 F.3d at 362 (quoting 18 U.S.C. 7

§ 3553(c)).

Mondragon-Santiago, 564 F.3d at 362 (internal quotation marks and citations 8

omitted). 

 551 U.S. 338 (2007). 9

 Id. at 358.

10

Id. at 357.

11

Id. at 356.

12

8

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reflects that the district court had before it at the sentencing hearing both the

PSR and Hernandez-Herrera’s motion for a variance or departure in which he

raised his arguments for a sentence below his Guidelines range. He reiterated

these arguments during the sentencing hearing, and the record shows that the

district court listened to each argument, posed questions to counsel, and stated

its belief that Hernandez-Herrera’s presence in the United States could not help

his son because the two would be unable to associate due to HernandezHerrera’s criminal conduct. Moreover, the district court explicitly relied on the

PSR, which contained a statement by the Probation Office that it had “not

identified any authorized factors concerning the offense or the offender that

would warrant departure from the advisory guideline range,” as a justification

for its sentence. When it adopted the findings of the PSR, the district court

expressly adopted this conclusion as its own. Given the circumstances, we hold

that the district court did not procedurally err with respect to the adequacy of

its sentencing explanation.

B

We now consider the substantive reasonableness of the sentence. The

district court sentenced Hernandez-Herrera to seventy months’ imprisonment

for his 2009 illegal reentry conviction, a sentence that was within the Guidelines

range of seventy to eighty-seven months. “A presumption of reasonableness

applies to sentences that fall within the guidelines.” “The presumption is

13

rebutted only upon a showing that the sentence does not account for a factor that

should receive significant weight, it gives significant weight to an irrelevant or

improper factor, or it represents a clear error of judgment in balancing

sentencing factors.” On appeal, Hernandez-Herrera argues that he is entitled

14

 United States v. Ruiz, 621 F.3d 390, 394 (5th Cir. 2010).

13

United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert. denied, 130 S. Ct. 14

1930 (2010).

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to a rebuttal of the presumption of reasonableness that attached to his sentence

because the district court made a clear error in judgment by failing to take into

account that he quit drinking alcohol in 2003 and had been working and

providing for his family. He also claims that his compelling family

circumstances made him less culpable, and more deserving of leniency, than the

typical violator of 8 U.S.C. § 1326.

We disagree. Hernandez-Herrera here appears simply to disagree with

the district court’s ultimate sentencing decision. Such disagreement does not

rebut the presumption of reasonableness that attached to his sentence, however.

As we have previously noted, “the sentencing judge is in a superior position to

find facts and judge their import under § 3553(a) with respect to a particular

defendant.” “A defendant’s disagreement with the propriety of the sentence

15

imposed does not suffice to rebut the presumption of reasonableness that

attaches to a within-guidelines sentence.” Moreover, even if we would have

16

sentenced Hernandez-Herrera differently in the first instance, “[t]he fact that

an appellate court may have reasonably concluded that a different sentence was

appropriate is not sufficient to justify reversal of the district court.” The

17

district court considered Hernandez-Herrera’s circumstances and arguments,

balanced them in light of the factors set forth in 18 U.S.C. § 3553(a), and

selected a sentence at the lowest end of the Guidelines range. The sentence is

not substantively unreasonable.

III

We next address Hernandez-Herrera’s challenges to his eighteen-month

revocation sentence for violations of the terms of his supervised release. We

 United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008).

15

 Ruiz, 621 F.3d at 398.

16

United States v. York, 600 F.3d 347, 361-62 (5th Cir.), cert. denied, 131 S. Ct. 185 17

(2010).

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review sentences imposed on the revocation or modification of a supervised

release term under a “plainly unreasonable” standard. Under this standard,

18

we first assess the reasonableness of the challenged sentence by addressing its

procedural and substantive reasonableness as we would an original sentence.

19

If we determine that the sentence is unreasonable, we then “consider whether

the error was obvious under existing law.”

20

A

We first address whether the district court procedurally erred by

inadequately explaining its decision to impose the eighteen-month revocation

sentence. As with original sentences, district courts must explain their

sentencing decisions in the revocation context. In United States v. Whitelaw,

21

we observed that the Supreme Court’s decision in Rita “sets forth the

requirements for the statement of reasons required to support a sentence under

various circumstances” and proceeded to apply that decision in a case involving

a revocation sentence. Accordingly, we determine the adequacy of the district

22

court’s explanation of Hernandez-Herrera’s revocation sentence through

reference to Rita and our case law applying that decision. We do so, however,

 See United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011).

18

Id. (“Under the plainly unreasonable standard, we evaluate whether the district 19

court procedurally erred before we consider the substantive reasonableness of the sentence

imposed under an abuse-of-discretion standard.” (internal quotation marks and citation

omitted)); see also United States v. Crudup, 461 F.3d 433, 438-39 (4th Cir. 2006) (“In

determining whether a sentence is plainly unreasonable, we first decide whether the sentence

is unreasonable. In conducting this review, we follow generally the procedural and

substantive considerations that we employ in our review of original sentences . . . with some

necessary modifications to take into account the unique nature of supervised release

revocation sentences.”).

 Miller, 634 F.3d at 843.

20

 580 F.3d 256 (5th Cir. 2009).

21

Id. at 261.

22

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with the understanding that our review of revocation sentences is generally

more deferential than our review of original sentences.

23

Here, the district court explained that it was relying “on the nature of the

allegations” that constituted Hernandez-Herrera’s supervised release violation

as the basis for his revocation sentence. The “nature and circumstances of the

offense and the history and characteristics of the defendant” is one of the

§ 3553(a) factors that a district court must consider when imposing a revocation

sentence, and the district court’s explanation implicitly identifies this factor as

24

supporting its sentencing decision. The district court’s explanation of

Hernandez-Herrera’s revocation sentence thus was adequate. The revocation

25

sentence is procedurally reasonable.

B

Finally, we address the substantive reasonableness of HernandezHerrera’s revocation sentence. As with his original sentence, HernandezHerrera argues that his revocation sentence is substantively unreasonable

because it is greater than necessary in light of the 18 U.S.C. § 3553(a) sentencing

factors. We disagree.

The district court revoked Hernandez-Herrera’s supervised release after

he admitted that he committed conduct that violated 8 U.S.C. § 1326(a) and

Miller, 634 F.3d at 843.

23

See 18 U.S.C. § 3583(e) (“The court may, after considering the factors set forth in 24

section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) . . . (3) revoke

a term of supervised release, and require the defendant to serve in prison all or part of the

term of supervised release authorized by statute for the offense that resulted in such term of

supervised release without creditfor time previously served on postrelease supervision . . . .”).

See United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008) (upholding a district 25

court’s sentencing decision in which the district court “adopted the findings, reasoning, and

Guidelines calculations of the PSR” and “rejected [the Defendant’s] request for a

below-guidelines sentence and imposed a maximum guidelines sentence, expressly stating its

belief that the sentence would ‘adequately address the objectives of punishment and

deterrence’”).

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(b)(1). A violation of 8 U.S.C. § 1326(a) and (b)(1) carries a statutory maximum

sentence of ten years of imprisonment and is a Class C felony. Accordingly,

26

Hernandez-Herrera’s conduct constituted a Grade B supervised release violation

under the Guidelines. Once combined with his criminal history category of V,

27

the violation yielded a Guidelines range of eighteen to twenty-four months of

imprisonment. Because the term of supervised release had been imposed

28

pursuant to Hernandez-Herrera’s conviction for violation of 8 U.S.C. § 1326(a)

and (b)(2), a class C felony, the statutory maximum term of imprisonment on

revocation of his supervised release was twenty-four months. Additionally, the

29

Guidelines recommend that any sentence imposed on revocation of supervised

release be served consecutively to other sentences being served by the

defendant.

30

Hernandez-Herrera’s revocation sentence of eighteen months thus rested

within his Guidelines range and below the maximum sentence allowed by

statute. We routinely uphold supervised release revocation sentences in excess

of the Guidelines range but within the statutory maximum. Moreover, the

31

district court’s decision to allow Hernandez-Herrera to serve ten months of his

revocation sentence concurrently with his other sentence was to his benefit and

supports the substantive reasonableness of the sentence. The revocation

sentence is substantively reasonable.

 8 U.S.C. § 1326(b)(1); 18 U.S.C. § 3559(a)(3). 26

 U.S. SENTENCING GUIDELINES MANUAL § 7B1.1(a)(2) (2008).

27

 Id. § 7B1.4.

28

 18 U.S.C. §§ 3559(a)(3), 3583(e)(3). 29

 U.S. SENTENCING GUIDELINES MANUAL § 7B1.3(f) & cmt. n.4 (2008).

30

See United States v. Whitelaw, 580 F.3d 256, 265 (5th Cir. 2009) (citing United States 31

v. Jones, 182 F. App’x 343, 344 (5th Cir. 2006)).

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* * *

AFFIRMED.

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