United States v. Juan Garcia-Lemus , 509 F. App'x 324 ( 2013 )

Case: 12-40353 Document: 00512126329 Page: 1 Date Filed: 01/28/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 28, 2013
No. 12-40353
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JUAN ANGEL GARCIA-LEMUS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:11-CR-983-1
Before JONES, DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
Appellant, Juan Angel Garcia-Lemus (“Garcia-Lemus”) pled guilty to
being an alien found in the United States after deportation and having been
convicted of a felony. 8 U.S.C. § 1326(a) and (b)(1). He was represented by a
Federal Public Defender and was sentenced to a term of 24 months
imprisonment followed by a three year supervised release term. He made no
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-40353 Document: 00512126329 Page: 2 Date Filed: 01/28/2013
No. 12-40353
objection to the sentence in the trial court. On appeal, he challenges only the
term of supervised release.
We review his appeal under the plain error standard. Fed. R. Crim.
Pro. 52(b); United States v. Hernandez-Guevara, 162 F.3d 863, 870 (5th Cir.
1998). His issues, centered on the proposition that imposing supervised release
on a deportable alien constitutes an upward departure, are now foreclosed by
this court's recent decision in United States v. Dominguez-Alvarado, 695 F.3d
324, 329 (5th Cir. 2012). The court committed no error, much less plain error,
in failing to treat the supervised release term as an upward departure in light
of the new guideline § 5D1.1(c) (stating that a term of supervised release should
not “ordinarily” be imposed on a removable alien). Id. The final sentence,
imposed within the guidelines range, is presumptively reasonable.
There remains only the question whether the district court’s failure to
explain reasons for imposing supervised release merits the relief of resentencing
under the plain error standard. We hold it does not. The sentencing hearing
here was perfunctory, punctuated mainly by the government’s reminder that
Garcia-Lemus has a criminal record including 11 prior convictions and 2 prior
illegal reentries at times when he was already serving supervised release terms.
Garcia-Lemus sought mercy as to the term of imprisonment only. Garcia-Lemus
make no attempt to demonstrate why this technical omission, if error at all,
affected his substantial rights or, if left uncorrected, would seriously affect the
fairness, integrity, or public reputation of judicial proceedings. Puckett v. United
States, 556 US 129, 135 (2009). No plain error is shown.
AFFIRMED.
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