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should not be published and is not precedent except under the limited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. 08-51133

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARCOS ANTONIO HERNANDEZ-HERNANDEZ,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:08-CR-1161-ALL

Before DAVIS, SMITH, and DENNIS, Circuit Judges. 

PER CURIAM:*

Marcos Antonio Hernandez-Hernandez appeals the 70-month sentence

imposed following his guilty plea conviction for illegal reentry. He asserts that

the district court erroneously calculated his advisory sentencing guidelines

range because it increased his base offense level and his criminal history score

based on a New Mexico state court conviction of robbery that was committed

when he was 15 years old. He contends also that the sentence imposed was

United States Court of Appeals

Fifth Circuit

F I L E D

December 1, 2009

Charles R. Fulbruge III

Clerk
No. 08-51133

2

substantively unreasonable because the district court did not consider the 18

U.S.C. § 3553(a) factors properly and imposed a significant upward variance.

Because Hernandez-Hernandez objected to the offense level and criminal

history enhancements in the district court, our review of his challenges to the

enhancements is de novo. See United States v. Klein, 543 F.3d 206, 213 (5th Cir.

2008), cert. denied, 129 S. Ct. 1384 (2009). We must decide whether the district

court committed any procedural errors, “such as failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a sentence based

on clearly erroneous facts, or failing to adequately explain the chosen sentence.”

Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 594, 597 (2007). 

In accordance with U.S.S.G. § 2L1.2, the district court properly increased

Hernandez-Hernandez’s offense level based on his New Mexico robbery

conviction because he was subject to adult penalties and was sentenced to three

years of imprisonment. See also § 2L1.2, comment. (n.1(A)(iv)). Additionally,

U.S.S.G. § 4A1.2 authorized the addition of three criminal history points. See

§ 4A1.2, comment. (n.7). Hernandez-Hernandez did not present any information

to rebut the accuracy of the information in the presentence report; accordingly,

the district court did not err in relying on that information. See United States

v. Ford, 558 F.3d 371, 377 (5th Cir. 2009). Hernandez-Hernandez has not shown

that the district court committed procedural error in the application of the

Guidelines. See Klein, 543 F.3d at 213.

Moreover, the record demonstrates that even if the district court had erred

by applying the increases, the alleged error would not require reversal; the

record shows that the district court intended to and did impose a valid,

nonguidelines, alternative sentence. See United States v. Bonilla, 524 F.3d 647,

656 (5th Cir. 2008), cert. denied, 129 S. Ct. 904 (2009). After it considered the

nature and circumstances of the offense and Hernandez’s criminal history and
No. 08-51133

3

characteristics, the district court explained that a 70-month sentence was fair

and reasonable. The district court thus considered the § 3553(a) factors. 

AFFIRMED.