* 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should not be published and is not precedent except under the limited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. 07-40759

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JOAQUIN HERNANDEZ-VASQUEZ, also known as Joaquin Hernandez

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:07-CR-169-ALL

Before REAVLEY, SMITH, and ELROD, Circuit Judges.

PER CURIAM:*

Joaquin Hernandez-Vasquez appeals the sentence imposed after he

pleaded guilty to illegally reentering the United States after deportation. The

sentence was within a properly calculated advisory guidelines range that was

increased by a prior conviction for a crime of violence (COV). 

Hernandez-Vasquez contends that his sentence is procedurally

unreasonable because the district court did not give a sufficient explanation for

the sentence. Because Hernandez-Vasquez did not object to the explanation at

United States Court of Appeals

Fifth Circuit

F I L E D

August 15, 2008

Charles R. Fulbruge III

Clerk
No. 07-40759

2

sentencing, we review this contention for plain error. See United States v.

Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008). The district court explained

that the sentence was based on the factors of 18 U.S.C. § 3553(a), independently

and as embodied in the Guidelines; additional elaboration was unnecessary. See

id.; see also Rita v. United States, 127 S. Ct. 2456, 2463-65, 2468 (2007); United

State v. Hernandez, 457 F.3d 416, 424 (5th Cir. 2006). There was no clear or

obvious error that affected Vasquez’s substantial rights or rendered the sentence

procedurally unreasonable. See United States v. Campos-Maldonado, __F.3d__,

2008 WL 2357364, *2 (5th Cir. June 11, 2008). 

Hernandez-Vasquez also contends that Gall v. United States, 128 S. Ct.

586, 596 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007), which

issued after his sentencing, abrogated the rationale of previous Fifth Circuit

decisions by broadening the district court’s discretion to impose a nonguidelines

sentence. He argues, therefore, that the sentencing court labored under a

misconception that it could not sentence Vasquez below the Guidelines in the

absence of “extraordinary circumstances” or based on the court’s disagreement

with guidelines policy or based on disfavored guidelines factors such as hardship

to Vasquez’s children. 

Because this theory was not argued in the district court, we review for

plain error. See Campos-Maldonado, 2008 WL 2357364 at *2 ; United States v.

Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), cert. denied, __S. Ct.__, 2008 WL

227315, (June 23, 2008) (No. 07-8978). Nothing in the record suggests that the

district court was constrained by this court’s precedent from considering all of

Hernandez-Vasquez’s arguments for a nonguidelines sentence. Accordingly,

there was no plain error. See Campos-Maldonado, 2008 WL 2357364 at *2. 

Hernandez-Vasquez also contends that his sentence is substantively

unreasonable because there is no empirical support for U.S.S.G. § 2L1.2, the

Guideline mandating the COV increase. He did not challenge the empirical

grounds for § 2L1.2 in the district court, so his contention is reviewed for plain
No. 07-40759

3

error. See Campos-Maldonado, 2008 WL 2357364 at *2. Nothing in the record

suggests that the district court believed that it was precluded by circuit

precedent from imposing a lesser sentence in the face of § 2L1.2. Moreover, preGall precedent did not prevent a district courtfrom giving a lower sentence than

advised by § 2L1.2. See id.; United States v. Gomez-Herrera, 523 F.3d 554, 557

n. 1 (5th Cir. 2008), petition for cert. filed (July 2, 2008)(No. 08-5226). 

Hernandez-Vasquez shows no plain error. The district court’s judgment

is AFFIRMED.