### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-50833 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. RAFAEL HERNANDEZ-PEREZ, Defendant - Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:12-CR-929-1

Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges. PER CURIAM: * Pursuant to his guilty plea, Rafae l H e r n a ndez-Perez was convicted of illegal reentry following removal from the United S tates and received, inter alia , 24 months’ imprisonment and three years’ supervised release. C ontesting only the supervised release, Hernandez contends h is sentence was procedurally and substantively unreasonable because th e di s trict court did not c onsider Guideline § 5D1.1(c) (imposition of supervised release ordinarily not f a vored for person U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D May31, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-50833 Document: 00512258923 Page: 1 Date Filed: 05/31/2013No. 12-50833

likely to be deported), and it failed to explicitly f in d t h e need for an “added measure of deterrence”, as recommended by § 5D1.1(c)’s commentary. Although post- Booker , the Sentencing Guidelines a re advisory only, and

a properly preserved o bjection to an ultimate sentence is revie w ed for reasonablen e s s under an abuse-of-discretion standard, the district court must still properly calculate the Guideline-sentencing range f or use in deciding on the sentence to i mpose. Gall v. United S tates, 552 U.S. 38, 51 (2007). In that respect, for issues preserved in district court , its application of the Guidelines is r eviewed de novo ; i ts factual findings, only for c lear error. E.g. , United States v . CisnerosGutierrez , 517 F.3d 7 51, 764 (5th Cir. 2008); United States v. Villegas , 404 F.3d 355, 359 (5th Cir. 2005). As he concedes, Hernandez failed, however, to present in district court his contentions regarding sup ervised release; t herefore, review is only for plain

error. E.g. , U

nited States v. Dominguez-Alvarado , 695 F.3d 324, 3 2 7 (5th Cir. 2012). For reversible plain e rror, Hernandez must show a clear or obvious error that affected his substantial rights. Puckett v. United States , 5 56 U.S. 129, 135 (2009). He fails to do so. At sentencing, the district court s tate d i t s concern t hat, because Hernandez’ children were United States citizens, a nd the United S tates w a s “th e only place that [he had] known”, Hernandez would be tempted to return. Accordingly, it cau ti o n e d H e r n a n d e z th a t r e t ur n ing illegally to the United States would result in additional criminal penalties. Despite not explicitly stating the particular facts o f Hernandez’ case wa r r a n t e d supervised release, the court’s

e x p l a nation was adequate to support its imposition. E.g. , United States v . Cancino-Trinidad , 710 F.3d 601, 607 (5th Ci r . 2 0 13) (imposition o f supervised release not plain error where court implicitly considered its deterrent effect); see also Dominguez-Alvarado , 695 F.3d at 3 30 (no plain error w here c ourt made

2 Case: 12-50833 Document: 00512258923 Page: 2 Date Filed: 05/31/2013No. 12-50833

particularized statements explaining why s entence – which i ncluded supervised release – was necessary to deter future criminal conduct and illegal reentry). AFFIRMED.

3 Case: 12-50833 Document: 00512258923 Page: 3 Date Filed: 05/31/2013