IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20465

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

IGNACIO HERNANDEZ-DOMINGUEZ, also known as Ignacio Pedro 

Hernandez, Jr., also known as Ignacio Pedro Hernandez-Dominguez, also 

known as Ignacio Pedro Hernandez Dominguez,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:17-CR-25-1

Before REAVLEY, GRAVES, and HO, Circuit Judges.

PER CURIAM:*

Ignacio Hernandez-Dominguez pleaded guilty to illegal reentry after a 

felony conviction in violation of 8 U.S.C. § 1326(a), (b)(1). The presentence 

report (PSR) calculated Hernandez-Dominguez’s guidelines imprisonment 

range as 10-16 months. The district court sentenced Hernandez-Dominguez to 

an above-guidelines sentence of 30 months of imprisonment followed by 3 years 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

June 26, 2018

Lyle W. Cayce

Clerk

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No. 17-20465

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of supervised release. Hernandez-Dominguez appeals, arguing that his aboveguidelines sentence is procedurally and substantively unreasonable because it 

is based on clearly erroneous facts regarding his deportation history.

He concedes that he did not object to the procedural reasonableness of 

his sentence. “When a defendant fails to raise a procedural objection below, 

appellate review is for plain error only.” United States v. Lopez-Velasquez, 526 

F.3d 804, 806 (5th Cir. 2008). Hernandez-Dominguez preserved his challenge 

to the substantive reasonableness of his sentence; therefore, that issue is 

reviewed for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 

(2007).

At the sentencing hearing, the district court explained that an upward 

variance was warranted based on Hernandez-Dominguez’s multiple prior 

deportations. The court first stated that “[t]he Defendant was removed from 

the United States in September of 2005. . . . [H]e was back in the United States 

within a very short period of time, found here by February 28th of ’06, just a 

few months later. This statement was in error. The PSR reflects that 

Hernandez-Dominguez was actually in state custody from September 2005 to 

February 2006, and he was not deported for the first time until April 2006. 

After the court’s erroneous statement, to which there was no objection, the 

court correctly listed Hernandez-Dominguez’s three actual deportations in 

April 2006, August 2015, and August 2016.

When considered in the context of the record as a whole, it is clear that 

Hernandez-Dominguez’s substantial rights were not affected. See Puckett v. 

United States, 556 U.S. 129, 135 (2009). The court’s misstatement regarding 

a single removal, especially where it was stated to have occurred during the 

first year of Hernandez-Dominguez’s 11-year history of removals, deportations, 

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and other criminal activity, could not have been so compelling such that it 

resulted in a procedurally unreasonable sentence under plain error review.

Hernandez-Dominguez also claims that his sentence is substantively 

unreasonable. According to Hernandez-Dominguez, the district court gave 

significant weight to an irrelevant or improper factor when it justified the 

upward variance by relying on clearly erroneous facts regarding his prior 

deportations. See United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). 

Moreover, he claims that the court’s balancing of the sentencing factors was 

“infected” by “clearly erroneous factual determinations,” and, therefore, the 

court’s stated reasons did not justify the variance.

The district court’s single erroneous statement regarding HernandezDominguez’s deportation history cannot be said to have infected the court’s 

consideration of the statutory sentencing factors. As stated, the district court 

justified the upward variance based on Hernandez-Dominguez’s history of 

prior removals, deportations, and reentries. The court noted that HernandezDominguez had not been deterred from continued illegal reentries despite a 

federal conviction and that an upward variance was necessary to afford 

adequate deterrence and to promote respect for the law. Taking into account 

the totality of the circumstances and giving appropriate deference to the 

district court’s consideration of the 18 U.S.C. § 3553(a) factors, it cannot be 

said that the district court abused its discretion. See United States v. Fraga, 

704 F.3d 432, 439-40 (5th Cir. 2013).

The judgment of the district court is AFFIRMED.

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