IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-50229

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CANDELARIO HERNANDEZ-RODRIGUEZ, also known as El Gorras,

Defendant-Appellant

Cons. w/No. 15-50230

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CANDELARIO HERNANDEZ-RODRIGUEZ,

Defendant-Appellant

Appeals from the United States District Court

for the Western District of Texas

USDC No. 2:10-CR-527-1

USDC No. 2:14-CR-810-1

United States Court of Appeals

Fifth Circuit

FILED

December 22, 2015

Lyle W. Cayce

Clerk

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Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Following Candelario Hernandez-Rodriguez’s guilty plea to illegal 

reentry after deportation, the district court sentenced him to 70 months in 

prison. The district court also revoked a term of supervised release that had 

been imposed following Hernandez-Rodriguez’s 2011 conviction for 

transporting illegal aliens and imposed a consecutive 12-month sentence. In 

this consolidated appeal, Hernandez-Rodriguez asserts that his aggregate 82-

month sentence is procedurally and substantively unreasonable. Specifically, 

he contends that a 2007 alien transportation conviction was improperly used 

multiple times to enhance the offense levels and the criminal history categories 

at sentencing for both the 2011 alien transportation and the illegal reentry 

convictions. In addition, he maintains that the 2011 conviction resulted in 

multiple criminal history points and that the district court improperly relied 

upon the prior alien transportation convictions as justification to run the 

sentences consecutively. Hernandez-Rodriguez asserts that the guidelines and 

advisory policy statement ranges resulted in a greater-than necessary 

sentence, particularly in light of the mitigating circumstances and benign 

motives for his return to the United States.

We review sentences for reasonableness, first ensuring that the 

sentencing court committed no significant procedural error, such as 

miscalculating the applicable guidelines range, and then reviewing the 

substantive unreasonableness of the sentence under a deferential abuse of 

discretion standard. Gall v. United States, 552 U.S. 38, 49-51 (2007). However, 

 

* 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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because Hernandez-Rodriguez did not object to the guidelines calculations or 

to his sentences on the grounds he now raises, we review his claims for plain 

error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). To 

establish plain error, Hernandez-Rodriguez must show a forfeited error that is 

clear or obvious and that affects his substantial rights. Puckett v. United 

States, 556 U.S. 129, 135 (2009). If he makes such a showing, this court has 

the discretion to correct the error but only if it seriously affects the fairness, 

integrity, or public reputation of judicial proceedings. Id.

Hernandez-Rodriguez’s challenge to the double-counting of his prior 

convictions does not constitute either a procedural or substantive sentencing 

error, as the guidelines at issue do not forbid the consideration of prior 

convictions to enhance both the offense level and the criminal history category. 

See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); United States 

v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001). Moreover, his general 

disagreement with the propriety of his sentence and the district court’s 

weighing of the 18 U.S.C. § 3553(a) factors is insufficient to rebut the 

presumption of reasonableness that attaches to a within-guidelines sentence. 

See Gall, 552 U.S. at 51; United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 

2009). Hernandez-Rodriguez has not demonstrated that the district court 

plainly erred by sentencing him to a within-guidelines aggregate sentence of 

82 months in prison. See Gall, 552 U.S. at 51; Peltier, 505 F.3d at 391-92. 

Consequently, the judgment of the district court is AFFIRMED.

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