United States v. Rolando Hernandez

Case: 10-10785 Document: 00511458241 Page: 1 Date Filed: 04/27/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 27, 2011
No. 10-10785
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROLANDO HERNANDEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:10-CR-30-1
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Rolando Hernandez appeals from the revocation of his term of supervised
release and the 14-month sentenced imposed upon revocation. He argues that
the criminal history score in his 2003 presentence report was incorrectly
calculated because two of his convictions should have been considered related.
He contends that he could not have obtained relief previously as to the
incorrectly calculated criminal history score because it would have been found
to be harmless error on direct appeal, as he was sentenced to the mandatory
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-10785 Document: 00511458241 Page: 2 Date Filed: 04/27/2011
No. 10-10785
minimum sentence in 2003. According to Hernandez, the allegedly incorrect
score did not affect his substantial rights until the revocation proceeding.
Alternatively, Hernandez contends that his 14-month sentence created an
unwarranted disparity with similarly situated defendants.
We ordinarily review sentences imposed on the revocation of supervised
release under the plainly unreasonable standard. United States v. Miller, 634
F.3d 841, 842 (5th Cir. 2011). Because Hernandez did not raise an objection to
his revocation sentence in the district court, however, any error raised on appeal
is 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). To show plain error,
Hernandez must show a forfeited error that is clear or obvious that affects his
substantial rights. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
If he were to make such a showing, this court would have the discretion to
correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See id.A defendant may not use a supervised release proceeding to challenge the
validity of his original conviction or sentence. United States v. Willis, 563 F.3d
168, 170 (5th Cir. 2009); United States v. Hinson, 429 F.3d 114, 116 (5th Cir.
2005); United States v. Moody, 277 F.3d 719, 721 (5th Cir. 2001). Hernandez has
failed to show error, plain or otherwise.
AFFIRMED.
2