United States v. Eugenio Duran , 509 F. App'x 359 ( 2013 )

Case: 12-20090 Document: 00512128508 Page: 1 Date Filed: 01/29/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 29, 2013
No. 12-20090
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EUGENIO AVALOS DURAN, also known as Eugenio Duran Avalos, also known
as Eugenio Avalos-Duran,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:11-CR-631-1
Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Eugenio Avalos Duran (Avalos) appeals the sentence imposed following his
guilty plea conviction for illegal reentry of a deported alien. See 8 U.S.C. § 1326.
The district court sentenced Avalos to serve 27 months in prison and two years
of supervised release. Avalos argues that the sentence is procedurally and
substantively unreasonable because the district court imposed a term of
supervised release despite the Sentencing Guidelines’ direction that “ordinarily”
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 12-20090
no term of supervised release should be imposed if the defendant is a deportable
alien. See U.S.S.G. § 5D1.1(c).
Contending that the sentence is procedurally unreasonable, Avalos asserts
that the district court did not adequately explain its reasons for imposing a term
of supervised release and did not provide him with notice of its intent to depart
from the Guidelines’ advice. Because he failed to raise these objections in the
district court, our review is limited to plain error. See United States v.
Dominguez-Alvarado, 695 F.3d 324, 327 (5th Cir. 2012). To show plain error,
Avalos must show a forfeited error that is clear or obvious and that affects his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he
makes such a showing, we have the discretion to correct the error but only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
The term of supervision imposed was within the statutory and guidelines
ranges for his offense of conviction; therefore, it did not trigger a “departure
analysis.” See Dominguez-Alvarado, 695 F.3d at 329. Avalos’s contention that
the district court was required to give notice of its departure from the Guidelines
thus fails. See id.
The record demonstrates that the district court was aware of the amended
provisions of § 5D1.1(c) because they were set out in the presentence report
(PSR), which the district court adopted as modified by the PSR’s second
addendum. See United States v. Rodriguez, 523 F.3d 519, 525-26 (5th Cir. 2008).
The district court also considered Avalos’s arguments for a downward variance,
Avalos’s statements in allocution, and the Government’s arguments for an
upward variance. Moreover, the district court provided a detailed explanation
for the sentence imposed with reference to 18 U.S.C. § 3553(a) factors.
Specifically, with respect to the term of supervised release, the court stated that
the circumstances warranted the imposition of a term of supervised release and
that its judgment was based on “the previous recidivism and repeated illegal
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No. 12-20090
reentries into the United States.” The district court provided a particularized
explanation justifying the imposition of a supervised release term. See
Dominguez-Alvarado, 695 F.3d at 330. Avalos has not shown that the district
court committed reversible procedural error, plain or otherwise, in imposing the
two-year supervised release term. See Dominguez-Alvarado, 695 F.3d at 329-30.
Avalos further argues that the sentence is substantively unreasonable
because the district court did not give proper weight to a factor that should have
received significant weight–specifically, the Sentencing Commission’s
recommendation that “ordinarily” no term of supervised release should be
imposed upon deportable aliens. See § 5D1.1(c). We do not decide whether
Avalos’s objection preserved his challenge to the substantive reasonableness of
the supervised release term because he has not demonstrated error, plain or
otherwise. See Rodriguez, 523 F.3d at 525. Although Avalos correctly asserts
that § 5D1.1(c) advises that “ordinarily” supervised release should not be
imposed, where, as here, the defendant is likely to be deported after
imprisonment, “[t]he 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.” § 5D1.1. comment. (n.5). That is what the
district court did in the instant case.
Because the supervised release term was within the guidelines range, we
apply a presumption of reasonableness and infer that the district court
considered all pertinent sentencing considerations in imposing the sentence. See
United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Moreover, because the
district court adopted the PSR, reflecting its consideration of § 5D1.1(c), Avalos
has not demonstrated error, plain or otherwise, with respect to his argument
that the district court failed to accord proper weight to § 5D1.1(c). See United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
The sentence is AFFIRMED.
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