Case: 12-50753       Document: 00512225166         Page: 1     Date Filed: 04/30/2013




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

                                                                            FILED
                                                                           April 30, 2013
                                     No. 12-50753
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ELVIS OCTAVIO HERNANDEZ-ALVARES,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 2:11-CR-1324-1


Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Elvis Octavio Hernandez-Alvares challenges his 46-month imprisonment
sentence imposed after pleading guilty to illegally reentering the United States
after deportation. He contends the sentence is greater than necessary to satisfy
the sentencing factors of 18 U.S.C. § 3553(a) because: the advisory Sentencing
Guidelines overstate the seriousness of his instant and prior offenses; and the
court gave inadequate consideration to his personal circumstances and benign
motive for reentry.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-50753     Document: 00512225166       Page: 2     Date Filed: 04/30/2013

                                   No. 12-50753

      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 

, 48-51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines is
reviewed de novo; its factual findings, only for clear error. E.g., United States v.
Cisneros-Gutierrez, 

, 764 (5th Cir. 2008); United States v. Villegas,

, 359 (5th Cir. 2005).
      Hernandez essentially asks to substitute his assessment of the relevant
sentencing factors for the district court’s thoroughly reasoned assessment, which
is contrary to the deferential review dictated by Gall and Rita v. United States,

, 351 (2007). (Hernandez concedes his challenge to Guideline
§ 2L1.2 as lacking an empirical basis is foreclosed by our precedent; he presents
this issue only to preserve it for possible further review.)
      AFFIRMED.




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