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 2013-12

United States v. Juan Xutuc-Lopez , 547 F. App'x 302 ( 2013 )


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  •                             UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4268
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN MANUEL XUTUC-LOPEZ, a/k/a Juan Manuel Xutuc,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:12-cr-00391-NCT-1)
Submitted:   November 26, 2013            Decided:   December 4, 2013
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark H. Allenbaugh, LAW OFFICES OF MARK H. ALLENBAUGH, Wickliff,
Ohio, for Appellant.    Kyle David Pousson, Ripley Eagles Rand,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Juan Manuel Xutuc-Lopez pleaded guilty without a plea
agreement     to   illegal        reentry       by   an    aggravated      felon,    in
violation     of   8   U.S.C.       § 1326(a),        (b)(2)     (2012),     and     was
sentenced to twenty-seven months’ imprisonment, followed by a
three-year term of supervised release.                    On appeal, Xutuc-Lopez
contends that the district court plainly erred by imposing a
term of supervised release as part of his sentence.                     We affirm.
Xutuc-Lopez concedes that the standard of review is
plain error, as he raises this issue for the first time on
appeal.     United States v. Maxwell,
    285 F.3d 336
    , 339 (4th Cir.
2002).    The Sentencing Guidelines provide that sentencing courts
ordinarily should not impose a term of supervised release for an
alien who     is   likely    to    be   deported      post-imprisonment.            U.S.
Sentencing     Guidelines         Manual        (“USSG”)     § 5D1.1(c)       (2012).
Commentary    to    that    provision       suggests       the   reason     for     this
general policy — if the defendant is out of the country, there
is no need for supervision, and if he returns illegally, a new
prosecution will provide the necessary security and deterrence.
USSG § 5D1.1 cmt. n.5.              The application note continues, “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. 2 Here, 
    the district court did not specifically discuss
its reasons for imposing a term of supervised release, but it
did consider the 18 U.S.C. § 3553(a) (2012) factors in handing
down its sentencing determination.                  The district court noted
Xutuc-Lopez’s     prior    felony   conviction        and   the   fact   that   he
returned to the United States, remaining here for approximately
three years before his arrest.
Our    plain     error   review     strictly     circumscribes       our
authority to remedy an error.               Puckett v. United States,
    556 U.S. 129
    , 134 (2009).        A “plain” error is one that is “clear” or
“obvious,”   United States v. Olano,
    507 U.S. 725
    , 731-32 (1993),
under “the settled law of the Supreme Court or this circuit.”
United States v. Carthorne,
    726 F.3d 503
    , 516 (4th Cir. 2013)
(internal quotation marks omitted).             This assessment is made at
the time of review.          Henderson v. United States,
    133 S. Ct. 1121
    , 1124-25 (2013).        We recognize that both the Supreme Court
and this court have clear precedent requiring a district court
to explain the particular reasons for its chosen sentence as
required by 18 U.S.C. § 3553(c) (2012).                Rita v. United States,
    551 U.S. 338
    , 356 (2007); United States v. Carter,
    564 F.3d 325
    ,
328, 330 (4th Cir. 2009).              But the specific issue presented
here,    concerning       sentencing        under    USSG    §    5D1.1(c)      and
application note 5, has not been so definitively resolved.                      See
United   States    v.     Bautista-Villanueva,        No.   12-4828,
    2013 WL 3 
    6098425,   at   *4,     *5   (4th   Cir.     Nov.   21,   2013)    (per   curiam)
(unpublished) (Niemeyer, J., dissenting) (collecting cases).
In the absence of clear authority on the issue raised
by Xutuc-Lopez, he has failed to show that the district court
plainly    erred   by    imposing    a     three-year     term    of   supervised
release.    We accordingly affirm.           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.
AFFIRMED
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