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. 09-10681

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARTIN HERNANDEZ-DOMINGUEZ,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:09-CR-15-1

Before JOLLY, WIENER, and ELROD, Circuit Judges.

PER CURIAM:*

Martin Hernandez-Dominguez (Hernandez) appeals his sentence following

his guilty plea to illegal reentry after deportation. He argues that his sentence

was substantively unreasonable because the district court failed to recognize

that he was not similarly situated to other offenders in criminal history category

VI. 

This court’s process of reviewing a sentence is bifurcated. United States

v. Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir. 2009). First, this court must

United States Court of Appeals

Fifth Circuit

F I L E D

April 15, 2010

Lyle W. Cayce

Clerk

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No. 09-10681

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examine whether the district court committed a significant procedural error in

determining the defendant’s sentence. Id. This court has recognized procedural

errors to include (1) failing to calculate, or improperly calculating, the applicable

sentencing range under the Sentencing Guidelines; (2) treating the Guidelines

as mandatory; (3) failing to consider the 18 U.S.C. § 3553(a) factors; (4)

determining a sentence based on clearly erroneous facts; or (5) failing to

adequately explain the chosen sentence, or any deviation therefrom. Id. If the

district court’s decision is procedurally sound, this court considers the

substantive reasonableness of the sentence, considering the factors set forth in

§ 3553(a). Id. A sentence within a properly calculated guideline range is

presumptively reasonable. Id.

For the first time on appeal, Hernandez argues that his sentence should

not be presumed reasonable because the district court committed a procedural

error in selecting his sentence. He argues that the court improperly employed

the appellate standard of “reasonableness.” Because Hernandez failed to raise

this claim in the district court in such a manner as to alert the court of the

nature of his disagreement, his argument is reviewed for plain error only. See

United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), cert. denied,

130 S. Ct. 192 (2009). 

The district court’s statements, read in context, indicate that the court

understood that the Guidelines were advisory only, but nevertheless provided

an appropriate sentencing range in Hernandez’s case. Hernandez thus has not

shown that the district court committed procedural error, plain or otherwise, in

selecting his sentence. See United States v. Cisneros-Gutierrez, 517 F.3d 751,

766 (5th Cir. 2008) (finding that the statement that the Guidelines provided an

“appropriate” sentencing range did not indicate that the district court incorrectly

applied a presumption of reasonableness). 

As to the substantive reasonableness of the sentence, we reject

Hernandez’s attempt to minimize his criminal history. Shortly after he entered

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No. 09-10681

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the United States illegally in 1989, Hernandez began engaging in serious

offenses, including firearms and narcotics offenses. During this period,

Hernandez illegally reentered the United States on four occasions, and in three

of those occasions, he reentered within days of his removal. Following his latest

illegal reentry, Hernandez was convicted of driving while intoxicated and theft.

In sum, Hernandez has failed to overcome the presumption of

reasonableness that is afforded the within-Guideline sentence. Accordingly, the

sentence is AFFIRMED.

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