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.

Case: 18-50386 Document: 00515383100 Page: 2 Date Filed: 04/15/2020

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, 580 F.3d 256, 259–60 (5th Cir. 2009)), vacated and remanded, 140 S. Ct. 762 (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.

Holguin-Hernandez, 140 S. Ct. at 764, 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. Id. at 767 (quoting 18 U.S.C. § 3553(a)).

Our review is confined to whether the sentence is substantively reasonable. See Gall v. United States, 552 U.S. 38, 51 (2007). Applying an abuse of discretion standard, id., 1 we 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, 140 S. Ct. 762, 767

Case: 18-50386 Document: 00515383100 Page: 3 Date Filed: 04/15/2020

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.