Case: 18-50976      Document: 00515099136         Page: 1    Date Filed: 08/30/2019




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


                                    No. 18-50976                                FILED
                                                                          August 30, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ROCKY OLIVAS HERNANDEZ,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 7:18-CR-172-1


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Rocky Olivas Hernandez appeals the sentence imposed following his
guilty plea convictions on three counts of harboring aliens for the purpose of
commercial advantage and private financial gain. The district court sentenced
Hernandez to concurrent 30-month sentences on each count; additionally, it
ordered that the sentences would run consecutively to any sentence imposed
on Hernandez’s three pending state criminal charges.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 18-50976

      For the first time, Hernandez argues that his sentence is substantively
unreasonable because it is greater than necessary to satisfy the sentencing
objectives of 18 U.S.C. § 3553(a). He asserts that a consecutive 24-month
sentence would have been sufficient.       Renewing contentions raised in the
district court in mitigation of his sentence, Hernandez asserts that he kept the
aliens supplied with food and water and that he committed the alien harboring
offenses due to his inability to work and the need to support his family. He
also notes the shooting deaths of his stepfather and his uncle.
      Generally, sentences are reviewed under an abuse of discretion standard
for substantive reasonableness. Gall v. United States, 

, 51 (2007).
However, where a defendant fails to object to his sentence, our precedent
permits the application of plain error review. See United States v. Peltier, 

, 391-92 (5th Cir. 2007).
      Hernandez argues that an objection following imposition of sentence was
not necessary to preserve his challenge to the reasonableness of his sentence,
and he raises the issue to preserve it for possible further review by the
Supreme Court. Because his substantive reasonableness challenge fails even
under the ordinary abuse of discretion standard, we will apply the more lenient
standard. See United States v. Rodriguez, 

, 361 (5th Cir. 2010).
      Here, Hernandez’s sentence of 30 months of imprisonment is entitled to
a rebuttable presumption of reasonableness. United States v. Alonzo, 

, 554 (5th Cir. 2006). A rebuttable presumption of reasonableness also
applies to the consecutive nature of his sentence. See United States v. Candia,

, 473 (5th Cir. 2006). “The presumption is rebutted only upon a
showing that the sentence does not account for a factor that should receive
significant weight, it gives significant weight to an irrelevant or improper




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                                 No. 18-50976

factor, or it represents a clear error of judgment in balancing sentencing
factors.” United States v. Cooks, 

, 186 (5th Cir. 2009).
      The record reflects that the district court listened to Hernandez’s
arguments in mitigation of his sentence, but ultimately decided that a 30-
month consecutive sentence was warranted in view of the advisory guidelines
range and the sentencing factors of 18 U.S.C. § 3553(a). Hernandez’s “belief
that the mitigating factors presented for the court’s consideration should have
been balanced differently is insufficient to disturb” the presumption of
reasonableness. United States v. Alvarado, 

, 597 (5th Cir. 2012).
      The judgment of the district court is AFFIRMED.




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