IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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, Rafael Hernandez-Perez was convicted of

illegal reentry following removal from the United States and received, inter alia,

24 months’ imprisonment and three years’ supervised release. Contesting only

the supervised release, Hernandez contends his sentence was procedurally and

substantively unreasonable because the district court did not consider Guideline

§ 5D1.1(c) (imposition of supervised release ordinarily not favored for person

United States Court of Appeals

Fifth Circuit

F I L E D

May 31, 2013

Lyle W. Cayce

Clerk

* 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.

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No. 12-50833

likely to be deported), and it failed to explicitly find the need for an “added

measure of deterrence”, as recommended by § 5D1.1(c)’s commentary.

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

a properly preserved objection to 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, 552 U.S. 38, 51 (2007). In that respect,

for issues preserved in district court, 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). 

As he concedes, Hernandez failed, however, to present in district court his

contentions regarding supervised release; therefore, review is only for plain

error. E.g., United States v. Dominguez-Alvarado, 695 F.3d 324, 327 (5th Cir.

2012). For reversible plain error, Hernandez must show a clear or obvious error

that affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135

(2009). He fails to do so. 

At sentencing, the district court stated its concern that, because

Hernandez’ children were United States citizens, and the United States was “the

only place that [he had] known”, Hernandez would be tempted to return.

Accordingly, it cautioned Hernandez that returning illegally to the United States

would result in additional criminal penalties. Despite not explicitly stating the

particular facts of Hernandez’ case warranted supervised release, the court’s

explanation was adequate to support its imposition. E.g., United States v.

Cancino-Trinidad, 710 F.3d 601, 607 (5th Cir. 2013) (imposition of supervised

release not plain error where court implicitly considered its deterrent effect); see

also Dominguez-Alvarado, 695 F.3d at 330 (no plain error where court made 

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No. 12-50833

particularized statements explaining why sentence – which included supervised

release – was necessary to deter future criminal conduct and illegal reentry). 

AFFIRMED.

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