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should not be published and is not precedent except under the limited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. 08-50314

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DAVID PENA-HERNANDEZ,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:07-CR-2835-ALL

Before HIGGINBOTHAM, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

David Pena-Hernandez appeals the sentence imposed following his guilty

plea conviction of attempted illegal reentry after deportation. He was sentenced

to 36 months of imprisonment and three years of supervised release. PenaHernandez first argues that his sentence must be vacated because the district

court committed a significant procedural error by failing to explain the bases for

the imposed sentence. Plain error review is applicable to this issue because

United States Court of Appeals

Fifth Circuit

F I L E D

August 18, 2009

Charles R. Fulbruge III

Clerk
No. 08-50314

2

Pena-Hernandez failed to object on this basis in district court. See United States

v. Mondragon-Santiago, 564 F.3d 357, 363-64 (5th Cir. 2009), petition for cert.

filed (June 24, 2009) (No. 08-11099).

At sentencing, Pena-Hernandez requested the “least possible sentence”

based upon various factors, including his age, work history, family location, and

medical reasons. Although it imposed a within-guidelines sentence, the district

court provided no specific explanation for its implicit rejection of PenaHernandez’s request for a lesser sentence and made no mention of the 18 U.S.C.

§ 3553(a) factors. Thus, “the district court failed to adequately explain its

reasons for the sentence imposed as required by § 3553(c), which is error.” Id.

at 364. This error “is also plain, or obvious,” as “the law requiring courts to

explain sentences is clear.” Id. Nonetheless, Pena-Hernandez is not entitled to

relief on this issue, as he has failed to show that the error affected his

substantial rights. See id. at 365. Pena-Hernandez has not shown that his

sentence is procedurally unreasonable. See id.; see also Gall v. United States,

128 S. Ct. 586, 597 (2007).

Pena-Hernandez contends that the imposed sentence was substantively

unreasonable because it was greater than necessary to accomplish the goals set

forth in § 3553(a) and because his prior conviction for obstruction was doublecounted. He also asserts that the presumption of reasonableness that this court

normally applies to within-guidelines sentences is inapplicable to his sentence

because U.S.S.G. § 2L1.2, the Guideline used to calculate his advisory guidelines

range, is not empirically supported.

Pena-Hernandez’s challenge to the presumption of reasonableness is

foreclosed by this court’s holding in Mondragon-Santiago, 564 F.3d at 366-67,

which was issued after he filed his appellate brief. Accordingly, his sentence is

afforded a presumption of reasonableness. See id. Additionally, the sentence

was correctly calculated, and there was no impermissible double counting. See

U.S.S.G. § 2L1.2(b)(1) & application note 6. Pena-Hernandez has not shown
No. 08-50314

3

sufficient reason for this court to disturb the sentence imposed by the district

court.

The district court’s judgment is AFFIRMED.