United States v. Hernandez

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
March 3, 2004
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 03-50630
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAURICIO JOE HERNANDEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(SA-94-CR-73-ALL)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Mauricio Joe Hernandez appeals the 24-month sentence imposed
upon revocation of supervised release, which stemmed from his 1994
conviction for being a felon in possession of a firearm. (The
revocation was based upon Hernandez’ drug use and withdrawal from
a drug treatment facility against the advice of the staff.)
Hernandez contends that the district court violated FED. R. CRIM.
P. 32(i)(3)(B) by failing to resolve a contested issue at
sentencing: whether Hernandez would be eligible for intensive drug

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treatment in prison in the light of his former gang affiliation,
which could require his segregation from the regular prison
population.
The parties dispute: whether FED. R. CRIM. P. 32 required the
district court to make a finding on the availability of drug
treatment; and whether Hernandez preserved this issue by objecting
at sentencing. We need not resolve these contentions; even
deciding them in the light most favorable to Hernandez, the
sentence was proper. The sentencing transcript reflects that the
district court implicitly determined that this issue would not
affect sentencing. Hernandez has not demonstrated that the court
imposed a sentence in violation of law or that the sentence was
plainly unreasonable. See United States v. Stiefel, 207 F.3d 256,
259 (5th Cir. 2000).
AFFIRMED

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