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

Clerk
No. 09-41009 

c/w No. 09-41023

* 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.

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 violating his supervised release. Alejo argues that the

district court failed to adequately explain why it rejected his arguments for a

lower sentence and creditfor acceptance of responsibility and why itimposed the

statutory maximum sentence for the supervised release violation. Alejo also

argues that the 117-month total sentence was greater than necessary to achieve

the sentencing goals of 18 U.S.C. § 3553(a).

Sentences are reviewed for reasonableness under an abuse-of-discretion

standard. United 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.” Id. If the sentence is procedurally sound, we then review

the substantive reasonableness of the sentence. Id. A presumption of

reasonableness applies to a within-guidelines sentence. United States v.

Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). We review revocation

sentences under “(a) both the ‘plainly unreasonable’ and the Booker
No. 09-41009 

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3

unreasonableness standards of review . . . [and] (b) the more exacting Booker

unreasonableness standard.” United States v. McKinney, 520 F.3d 435, 428 (5th

Cir. 2008).

Because Alejo did not object to the adequacy of the district court’s

explanation for either sentence, his claims of procedural error are subject to

plain error review. See United States v. 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 to afford

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 unreasonableness of his 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 the
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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.