Case: 18-50386    Document: 00515383100      Page: 1      Date Filed: 04/15/2020




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                 No. 18-50386                               FILED
                               Summary Calendar                         April 15, 2020
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

GONZALO HOLGUIN-HERNANDEZ,

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas


     ON REMAND FROM THE UNITED STATES SUPREME COURT
Before JONES, * HAYNES, and WILLETT, Circuit Judges.
PER CURIAM:
      Gonzalo Holguin-Hernandez pleaded true to the allegation that he
violated a condition of his supervised release by committing a new offense,
specifically, aiding and abetting possession of marijuana with intent to
distribute. The new offense involved over 100 kilograms of marijuana. Under
the Guidelines policy statements for this Grade A violation, Holguin-
Hernandez’s recommended range was twelve to eighteen months. The district



      *  Judge Benavides has removed himself from this case.    Judge Jones has been
substituted in his place.
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                                       No. 18-50386

court imposed a bottom-of-the-range sentence of twelve months but ordered it
to run consecutively to the sentence imposed on the new marijuana offense.
       Holguin-Hernandez appealed, arguing that his twelve-month total
sentence was greater than necessary to effectuate the sentencing goals of
18 U.S.C. § 3553(a) and was therefore unreasonable.                   Applying our well-
established prior precedent, as we are required to do, we ruled that Holguin-
Hernandez failed to raise his challenges in the district court, such that our
review was for plain error only. United States v. Holguin-Hernandez, 746 F.
App’x 403 (5th Cir. 2018) (mem.) (citing United States v. Whitelaw, 

, 259–60 (5th Cir. 2009)), vacated and remanded, 

(2020). The
Supreme Court granted certiorari and vacated our decision, determining that
by arguing for a specific shorter sentence than he received, Holguin-Hernandez
preserved his claim of error such that plain error review was inappropriate.

, 765, 767. The Court declined to decide
any further issues and remanded for our consideration consistent with its
opinion:
              We hold only that the defendant here properly
              preserved the claim that his 12-month sentence was
              unreasonably long by advocating for a shorter
              sentence and thereby arguing, in effect, that this
              shorter sentence would have proved “sufficient,” while
              a sentence of 12 months or longer would be “greater
              than necessary” to “comply with” the statutory
              purposes of punishment.

(quoting 18 U.S.C. § 3553(a)).
       Our review is confined to whether the sentence is substantively
reasonable. See Gall v. United States, 

, 51 (2007). Applying an
abuse of discretion standard,

conclude that the district court did not


       1 Arguably some of Holguin-Hernandez’s specific arguments were not preserved and
are subject to plain error review. Cf. United States v. Holguin-Hernandez, 

, 767


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                                         No. 18-50386

reversibly err in assessing this sentence. As explained above, the twelve-
month revocation sentence is within the applicable advisory Guidelines policy
statement ranges. See U.S.S.G. § 7B1.4(a). The district court’s order that the
revocation sentence run consecutively to the sentence for the new marijuana
offense is consistent with U.S.S.G. § 7B1.3(f), which provides that “[a]ny term
of imprisonment imposed upon the revocation of . . . supervised release shall
be ordered to be served consecutively to any sentence of imprisonment that the
defendant is serving.” Reviewing the district court’s remarks cited by Holguin-
Hernandez, we conclude that nothing inappropriate was considered and the
district court’s sentence was reasonable.
       The judgment of the district court is AFFIRMED.




(Alito, J., concurring) (“[W]e do not decide whether this petitioner property preserved his
particular substantive-reasonableness arguments, namely that he did not pose a danger to the public
and that a 12-month sentence would not serve deterrence purposes.”). However, because Holguin-
Hernandez would not prevail even under the less deferential abuse of discretion standard, we do
not reach that question here.

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