### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 09-41009 Summary Calendar
UNITED STATES OF AMERICA, Plaintiff-Appellee

v. VICTOR ALEJO-HERNANDEZ, Defendant-Appellant

- - - - - - - - - - - - - - - - - - - - - - - - consolidated with:

No. 09-41023 Summary Calendar
UNITED STATES OF AMERICA, Plaintiff-Appellee

v. VICTOR ALEJO-HERNANDEZ, Defendant-Appellant United States Court of Appeals

Fifth Circuit 

### F I L E D July 21, 2010 Lyle W. Cayce ClerkNo. 09-41009 c/w No. 09-41023

* Pursuant to 5

TH C IR
. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR
. R. 47.5.4. 2

Appeals from the United States District Court for the Southern District of Texas USDC No. 2:09-CR-501-1 USDC No. 2:09-CR-738-1
Before JOLLY, WIENER, and ELROD, Circuit Judges. PER CURIAM: * Victor Alejo-Hernandez (Alejo) appeals following his guilty-plea conviction of, and sentence for, illegal reentry and the concomitant revocation of his supervised release related to a prior conviction for illegal reentry. Alejo was sentenced to 93 months of imprisonment and three years of supervised release for the most recent illegal reentry conviction and a consecutive 24-month term of imprisonment for vi olating his supervised release. Alejo argues that the district court failed to adequately explain why i t rejected his arguments for a lower sentence and credit for acceptance ofresponsibility and why it imposed the statutory maximum sentence for the supervised release violation. Alejo also argues that the 117-month total sentence was greater than necessary toachieve the sentencing goals of 18 U.S.C. § 3553(a). Sentences are reviewed for reasonableness under an abuse-of-discretion standard. U nited States v. Gall , 552 U.S. 38, 51 (2007). First, we must ensure that the district court did not procedurally err by “failing to adequately explain the chosen sentence.” I d. If the sentence is procedurally sound, we then review the substantive reasonableness of the sentence. I d. A presumption of reasonableness applies to a within-guidelines sentence. U nited States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008 ). We review revocation sentences under “(a) both the ‘plainly unreasonable’ and the BookerNo. 09-41009 c/w No. 09-41023

3 unreasonableness standards o f review . . . [and] (b) the more exacting Booker unreasonableness standard.” U nited Statesv. McKinney, 520 F.3d 435, 428 (5th Cir. 2008). Because Alejo did not object to the adequacy of the district court’s explanation for ei ther sentence, his claims of procedural error are subject to plain error review. See United Statesv. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). Both sentences were within the guidelines ranges, and Alejo fails to show how an adequate explanation would have changed either sentence. Therefore, he has failed to show that the error, if any, affected his substantial rights. See id. Alejo has also not shown that the district court committed error, plain or otherwise, by imposing a substantively unreasonable sentence. See Gall , 552 U.S. at 51. The record in this case provides sufficient justification for the district court’s implicit determination that a 93-month sentence was necessary toafford adequate deterrence to criminal conduct and to protect the public from Alejo’s future crimes. See § 3553(a)(2)(B), (C). To the extent that Alejo argues that the 24-month revocation sentence magnifies the unreasonablenessofhis 93-month sentence, a revocation sentence based on a separate conviction has no bearing on the reasonableness of the sentence imposed for the most recent conviction. See United States v. LopezVelasquez, 526 F.3d 804, 808-09 (5th Cir. 2008). The 24-month revocation sentence was within the guidelines range and statutory maximum, and the consecutive nature of the sentence is expressly authorized by the Guidelines. See § 3583(e)(3); U.S.S.G. §§ 7B1.4(a), 7B1.3(f). As Alejo acknowledges, his arguments that the presumption of reasonableness should not apply because U.S.S.G. § 2L1.2 is not empirically-based and that he can satisfy the third and fourth prongs of theNo. 09-41009 c/w No. 09-41023

4 plain error test without showing any effect on the length of his sentence are foreclosed by Mondragon-Santiago, 564 F.3d at 361, 365-67. The judgments of the district court are AFFIRMED.