Case: 09-11204 Document: 00511216251 Page: 2 Date Filed: 08/26/2010
that the district court committed any procedural error; thus, we need only review
the substantive reasonableness of his sentence. See Gall, 552 U.S. at 51.
Hernandez argues that his above-guidelines sentence is substantively
unreasonable because the advisory guidelines range adequately accounted for
his prior criminal history, including the nature and recency of his past crimes.
The Supreme Court, however, has “implicitly rejected the position that no
additional weight could be given to factors included in calculating the applicable
advisory Guidelines range, since to do otherwise would essentially render the
Guidelines mandatory.” United States v. Williams, 517 F.3d 801, 809 (5th Cir.
2008). Moreover, the district court’s oral and written reasons reflect that the
court considered the guidelines; the policy statements; and the 18 U.S.C.
§ 3553(a) factors, including the nature and circumstances of the offense of
conviction, Hernandez’s history and characteristics, and the need for the
sentence to provide adequate deterrence and to protect the public from further
criminal conduct by Hernandez. The district court noted that Hernandez’s
criminal history reflected several crimes which were not included in the
guidelines calculations and which, as a whole, reflected that Hernandez had a
lack of respect for the law.
In sum, the district court did not abuse its discretion. The sentence
imposed “was reasonable under the totality of the relevant statutory factors”.
United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008) (internal quotation
omitted); see also United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir.
2008) (upholding an upward variance based on the nature and characteristics
of the defendant and his criminal history).