United States v. Manuel Olivarez-Chavez , 505 F. App'x 310 ( 2013 )

Case: 12-40433 Document: 00512098250 Page: 1 Date Filed: 01/02/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 2, 2013
No. 12-40433
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
MANUEL OLIVAREZ-CHAVEZ,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:11-CR-1954-1
Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
Manuel Olivarez-Chavez was convicted by guilty plea for being found in
the United States after a previous deportation, and was sentenced to 60 months’
imprisonment and three years’ supervised release. In challenging the
supervised release in the light of recent amendments to Guideline § 5D1.1(c)
(supervised release ordinarily not necessary for deportable alien), Olivarez
contends his sentence is both procedurally and substantively unreasonable
because the district court: did not explain its imposition of the supervised
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40433 Document: 00512098250 Page: 2 Date Filed: 01/02/2013
No. 12-40433
release; did not give notice of its intent to depart from the applicable advisory
Guidelines sentencing range by imposing it; and did not properly account for the
Guidelines’ recommending no supervised-release term be imposed.
Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 48-51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines is
reviewed de novo; its factual findings, only for clear error. E.g., United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas,
404 F.3d 355, 359 (5th Cir. 2005).
Because Olivarez failed to present his contentions in district court, review
is only for plain error. E.g., United States v. Mondragon-Santiago, 564 F.3d 357,
361 (5th Cir. 2009); see also United States v. Dominguez-Alvarado, 695 F.3d 324,
327-28 (5th Cir. 2012) (use of “ordinary” in Guideline § 5D1.1(c) considered
“hortatory not mandatory”; imposing supervised release within statutory and
advisory Guideline sentencing range does not trigger departure analysis). To show
reversible plain error, Olivarez must show, inter alia, a forfeited error that is clear
or obvious. Puckett v. United States, 556 U.S. 129, 135 (2009). He fails to do so.
Because the imposed three-year term of supervised release was within
Olivarez’ statutory and advisory Guidelines sentencing range, the supervised-
release term was not a departure. E.g., Dominguez-Alvarado, 695 F.3d at 329.
When addressing the overall sentence, the district court noted Olivarez’ criminal
history and the need for deterrence. It also stated it was imposing the
supervised release due to Olivarez’ criminal history. In the light of these
comments, the district court appropriately exercised the discretion it enjoys
under Guideline § 5D1.1(c) in determining Olivarez’ sentence. See id.
AFFIRMED.
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