* 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. 07-41171

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

VICTOR TOMAS MENDEZ-HERNANDEZ

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:06-CR-940-ALL

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

Victor Tomas Mendez-Hernandez pleaded guilty to illegal re-entry of a

removed alien, in violation of 8 U.S.C. § 1326. He was sentenced, inter alia, at

the low end of the advisory sentencing-guidelines range to 57-months’

imprisonment. He contends his sentence is excessive and this court should

remand to district court both for resentencing and to correct a clerical error in

the judgment. 

United States Court of Appeals

Fifth Circuit

F I L E D

January 6, 2009

Charles R. Fulbruge III

Clerk
No. 07-41171

2

Although post-Booker, the Sentencing Guidelines are advisory only, and

an ultimate sentence is reviewed for reasonableness under an abuse of discretion

standard,the district court must still properly calculate the guideline-sentencing

range for use in deciding on the sentence to impose. Gall v. United States, 128

S.Ct. 586 (2007). In that respect, its application of the guidelines is reviewed de

novo; its factual findings only for clear error. E.g., United States v. CisnerosGutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d

355, 359 (5th Cir. 2005). 

Mendez contends this case should be summarily remanded for

resentencing because the Supreme Court’s decisions in Gall and Kimbrough v.

UnitedStates, 128 S.Ct. 558 (2007),“have drastically altered the legal landscape

of federal sentencing from that which existed when Mr. Mendez-Hernandez was

sentenced”. He contends the sentence was unreasonable in any event because

(1) the district court failed to properly consider the nature and circumstances of

the offense and the history and characteristics of the defendant, as required

under 18 U.S.C. § 3553(a)(1); (2) the district court failed to properly consider its

authority to depart downward under the Guidelines, as required under

§§ 3553(a)(4) and (5); and (3) the guidelines sentence imposed was unreasonably

harsh. 

Mendez did not contend in the district court that this court’s post-Booker,

pre-Gall/Kimbrough decisions were contrary to the Supreme Court’s rationale

in Booker. Accordingly, we review this contention only for plain error.

See United States v. Rodriguez-Rodriguez, 530 F.3d 381, 387-88 (5th Cir. 2008).

Nothing in the record suggests that the district court felt constrained by this

court’s post-Booker precedent from considering all of Mendez’ bases for a more

lenient sentence . See id. at 388; United States v. Campos-Maldonado, 531 F.3d

337, 338-39 (5th Cir.), cert. denied, 129 S.Ct. 328 (2008). Instead, the record

reflects that the district court imposed a guidelines sentence because it was
No. 07-41171

3

appropriate, given Mendez’ recidivism and because ofthe need to deter him from

future criminal conduct. Mendez’ bases for a non-guidelines sentence were

considered and rejected. The district court gave due consideration to the nature

and circumstances of the offense and to the history and characteristics of the

defendant. 

Because Mendez was sentenced within the guideline sentencing range, the

sentence is presumptively reasonable. See UnitedStates v. Alonzo, 435F.3d 551,

554 (5th Cir. 2006). Mendez has not shown that the district court would have

departed from the guidelines but for this court’s pre-Gall precedent. On the

contrary, the district court specifically noted that previous, shorter sentences

had not deterred Mendez from illegally reentering the United States. No error

has been shown, plain or otherwise. See Campos-Maldonado, 531 F.3d at 339;

Rodriguez-Rodriguez, 530 F.3d at 388. Nor has Mendez shown that the district

court abused its discretion by failing, according to Mendez, to give proper

consideration to the § 3553 factors or by imposing an unreasonably harsh

sentence. See Gall, 128 S. Ct. at 596-97. 

Mendez also contends that the case should be remanded for correction of

the judgment under Federal Rule of Criminal Procedure 36 because the

judgment does not reflectthe correct offense of conviction. According to Mendez,

the judgment should reflect that he was convicted for being found unlawfully in

the United States, as was charged in the indictment, and not “Re-entry of a

deported alien,” as it currently reads. This contention was rejected in United

States v. Buendia-Rangel, 2008 WL 4155420 at *1 (5th Cir. 9 Sep., 2008) (No.

07-40879; unpublished). 

AFFIRMED.