United States v. Jose Benitez Alvarado ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4784
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE ADOLFO BENITEZ ALVARADO,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:13-cr-00696-JFM-1)
Submitted: July 23, 2015 Decided: August 27, 2015
Before THACKER and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Vacated in part and remanded by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Meghan Skelton, Greenbelt,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Zachary A. Myers, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Adolfo Benitez Alvarado pleaded guilty to illegal
reentry of a removed alien, in violation of 8 U.S.C. § 1326(a),
(b)(2) (2012). On appeal, Benitez Alvarado contends that the
district court procedurally erred when it sentenced him to a
three-year term of supervised release without a proper
explanation. We agree, vacate the term of supervised release,
and remand for further proceedings.
Benitez Alvarado is a native and citizen of El Salvador.
In 2002, following a 2001 conviction for robbery, Benitez
Alvarado was ordered removed from the United States and
subsequently deported. He was removed from the United States a
second time, in 2011. In 2013, Benitez Alvarado was arrested in
Maryland and later convicted of reckless endangerment. The 2002
order of removal was never rescinded, and Benitez Alvarado was
never given permission to reenter the United States.
Before Benitez Alvarado pleaded guilty to illegal reentry,
he was informed that he could receive a sentence that included a
period of supervised release. The presentence report (“PSR”)
recommended a Sentencing Guidelines range of 46 to 57 months’
imprisonment. The PSR did not make a recommendation regarding
supervised release, but it did reference U.S. Sentencing
Guidelines Manual § 5D1.1 (regarding imposition of a term of
supervised release).
2
Under USSG § 5D1.1(c), if supervised release is not
required by statute and the defendant is an alien facing post-
incarceration removal, a sentencing court “ordinarily should not
impose a term of supervised release.” U.S. Sentencing
Guidelines Manual § 5D1.1(c). If the alien were to return
illegally, deterrence and the need to protect the public are
“adequately served by a new prosecution.” § 5D1.1 cmt. n.5.
“The court should, however, consider imposing a term of
supervised release on such a defendant if the court determines
it would provide an added measure of deterrence and protection
based on the facts and circumstances of a particular case.” Id.
At sentencing, the Government requested a Guidelines
sentence of 52 months’ imprisonment and 3 years’ supervised
release. As the Government began to acknowledge that supervised
release under this circumstance was not generally advised, the
district court interjected: “I do that anyway. It seems to me
it’s an additional incentive not to come back.” J.A. 44.1
Benitez Alvarado claimed his criminal history was overstated and
requested a departure from his Criminal History Category, and a
Guidelines range of 27 to 33 months. He did not specifically
object to the imposition of supervised release. Nevertheless,
1
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
3
he claimed that he had only returned to the United States in the
past to be with his family, and that because his family has
decided to move to El Salvador he would not be returning to the
United States.
The district court partially credited Benitez Alvarado’s
argument for a lower sentence and reduced his Guidelines range
to 41 to 51 months’ imprisonment. The court then sentenced
Benitez Alvarado to 41 months’ imprisonment and 3 years’
supervised release. Benitez Alvarado did not object to the
imposition of supervised release.
The parties do not agree on the appropriate standard of
review, Benitez Alvarado asserting that reasonableness review
applies and the Government arguing for plain error review. In
United States v. Aplicano-Oyuela, __ F.3d __, 2015 WL 4081258(4th Cir. July 7, 2015), the Defendant was convicted of illegal
reentry and faced deportation upon the completion of his
sentence. At sentencing, he knew that the PSR included a
recommendation that he serve a period of supervised release, and
yet, while he argued for a below-Guidelines sentence, the
Defendant did not object to the imposition of supervised
release. The district court sentenced the Defendant to a term
of imprisonment and a period of supervised release. On appeal,
the Defendant claimed that the imposition of supervised release
was both procedurally and substantively unreasonable. We
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concluded that the Defendant did not properly preserve this
particular sentencing issue and reviewed the issue for plain
error. 2015 WL 4081258, at *4. In view of the similarity of
these facts to the circumstances presented here, we will review
Benitez Alvarado’s claim for plain error.
To satisfy plain error review, Benitez Alvarado must
establish that: (1) there is a sentencing error; (2) the error
is plain; and (3) the error affects his substantial rights. See
United States v. Olano, 507 U.S. 725, 731–32 (1993). If this
test is satisfied, we must decide whether to cure the error “and
should not do so unless the error ‘seriously affects the
fairness, integrity or public reputation of judicial
proceedings.’” United States v. Hargrove, 625 F.3d 170, 184
(4th Cir. 2010) (quoting Olano, 507 U.S. at 736). An error is
plain if it is “clear or obvious at the time of appellate
consideration.” United States v. Ramirez-Castillo, 748 F.3d
205, 215 (4th Cir. 2014) (citation and internal quotation marks
omitted).
In Aplicano-Oyuela, we held that our review for procedural
reasonableness of the imposition of supervised release in an
illegal reentry case should include consideration of whether the
sentencing court “(1) is aware of Guidelines section 5D1.1(c);
(2) considers a defendant’s specific circumstances and the
§ 3553(a) factors; and (3) determines that additional deterrence
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is needed.” 2015 WL 4081258, at *6 (citing United States v.
Alvarado, 720 F.3d 153, 159 (2d Cir. 2013)). The record shows
that here the court was aware of USSG § 5D1.1(c). But, when the
Government first mentioned supervised release, the district
court stated, “I do that anyway.” J.A. 44. The court did not
explain why the facts and circumstances of Benitez Alvarado’s
case warranted the “added measure of deterrence and protection”
that a term of supervised release would provide. U.S.
Sentencing Guidelines Manual § 5D1.1 cmt. n.5. Rather, in
reference to Benitez Alvarado’s claim that he would not return
to the United States, the court stated, “I do understand that
you and your family are trying to make arrangements for them to
go to your home country rather than have you come here, and, in
terms of that, I think there is a realistic chance that’s what
will happen.” J.A. 54.
Because the district court implied that it always ordered
supervised release on deportable aliens, while at the same time
perceiving a realistic chance that Benitez Alvarado would not
return to the United States, we conclude that the court failed
to consider Benitez Alvarado’s specific circumstances before it
decided to impose supervised release. We also conclude that the
court did not decide whether additional deterrence was needed
“based on the facts and circumstances of [the] particular case.”
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U.S. Sentencing Guidelines Manual § 5D1.1 cmt. n.5.
Accordingly, we conclude there was error and it was plain. 2
Furthermore, we conclude that this error affected Benitez
Alvarado’s substantial rights. See United States v. Price, 777
F.3d 700, 712 (4th Cir. 2015) (holding Guidelines error affected
defendant’s substantial rights because he was sentenced to
longer term of supervised release). Finally, given the court’s
finding of a realistic chance Benitez Alvarado would not return
and that his criminal history was overstated, the record does
not overwhelmingly support the finding that, had the court
considered Benitez Alvarado’s individual circumstances, it would
have ordered supervised release. Cf. United States v. Promise,
255 F.3d 150, 161-64 (4th Cir. 2001) (en banc) (declining to
notice plain error at sentencing because evidence overwhelmingly
supported drug quantity). Therefore, we conclude that the error
seriously affects the fairness, integrity, and public reputation
of the judicial proceedings and should be corrected. See Price,
777 F.3d at 712.
2
The district court, of course, did not have the benefit of
our decision in Aplicano-Oyuela at the time of sentencing.
Nevertheless, the Supreme Court has explained that an error may
be plain even if the legal question was unsettled at the time of
the district court’s decision: “It is enough that an error be
‘plain’ at the time of appellate consideration for the second
part of the four-part Olano test to be satisfied.” Henderson v.
United States, 133 S. Ct. 1121, 1130-31 (2013) (alterations
omitted).
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Accordingly, we vacate the term of supervised release and
remand for resentencing in accordance with this opinion. 3 We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
VACATED IN PART AND REMANDED
3 We express no opinion as to the propriety of supervised
release in this case.
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