United States v. Jose Chaides-Corral , 507 F. App'x 440 ( 2013 )

Case: 12-40089 Document: 00512112909 Page: 1 Date Filed: 01/15/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 15, 2013
No. 12-40089
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE RAMON CHAIDES-CORRAL,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 2:11-CR-939-1
Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Jose Ramon Chaides-Corral appeals the sentence imposed following his
guilty-plea conviction of being an alien present in the United States after previ-
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40089 Document: 00512112909 Page: 2 Date Filed: 01/15/2013
No. 12-40089
ously having been deported, in violation of 8 U.S.C. § 1326(a) and (b)(1). The dis-
trict court sentenced Chaides-Corral to fifty-seven months of imprisonment and
a two-year term of supervised release (“SR”).
Chaides-Corral contends that the court erred by imposing SR in light of
amended U.S.S.G. § 5D1.1(c), which became effective two months before he was
sentenced and provides that “[t]he court ordinarily should not impose a term of
[SR] in a case in which [SR] is not required by statute and the defendant is a
deportable alien who likely will be deported after imprisonment.” § 5D1.1(c).
Chaides-Corral also argues that the court plainly erred by failing adequately to
explain why it was imposing SR notwithstanding advice in the sentencing guide-
lines and by failing to give notice of its intent to depart from the guidelines. He
further maintains that his sentence is substantively unreasonable because the
court failed to account for the recommendation in § 5D1.1(c), which he argues
was a sentencing factor that should have received significant weight.
In reviewing a sentence, we first examine whether the district court com-
mitted significant procedural error. Gall v. United States, 552 U.S. 38, 51
(2007). If the decision is procedurally sound, we consider its substantive reason-
ableness. Id.
Chaides-Corral objected only generally to the reasonableness of his sen-
tence and not on the grounds he raises on appeal. The government asserts that
Chaides-Corral invited the error by conceding that the presentence report
(“PSR”)—which noted the applicable statutory and guidelines provisions for SR
—was properly calculated. The record, however, does not reflect that Chaides-
Corral conceded that SR should be imposed; it shows that he merely failed to
object to a specific issue.
Thus, because Chaides-Corral lodged only a general objection to reasona-
bleness, review is for plain error. See United States v. Dominguez-Alvarado, 695
F.3d 324, 327 (5th Cir. 2012); United States v. Mondragon-Santiago, 564 F.3d
357, 361 (5th Cir. 2009). To establish that, he must show a forfeited error that
2
Case: 12-40089 Document: 00512112909 Page: 3 Date Filed: 01/15/2013
No. 12-40089
is clear or obvious and that affects his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have the dis-
cretion to correct the error, but only if it seriously affects the fairness, integrity,
or public reputation of judicial proceedings. Id.
Chaides-Corral cannot show that the district court committed clear error
in imposing SR. Section 5D1.1(c)’s advice against imposing SR is hortatory
rather than mandatory. Dominguez-Alvarado, 695 F.3d at 329. Further, not-
withstanding the recent addition of the provisions of § 5D1.1(c), a “departure
analysis” is not triggered where, as here, the district court imposes a term of SR
that is within the statutory and guidelines range for the offense of conviction. Id.
Thus, Chaides-Corral’s assertion that the imposition of SR was a departure for
which the court was required to give notice and provide explanation is unavail-
ing. See id.
Further, the explanation for the sentence was adequate, under the circum-
stances, to justify SR. The court implicitly considered Chaides-Corral’s history
and characteristics and the need for deterrence.
As for Chaides-Corral’s argument that his sentence was substantively
unreasonable because the court failed to account for a factor that should have
received significant weight, the court adopted the PSR report and provided ade-
quate reasons for imposing SR. Moreover, because the two-year term of SR is
within the statutory and guidelines range for the offense of conviction, it is pre-
sumptively reasonable, so we infer that the court took into account all pertinent
sentencing considerations. See Dominguez-Alvarado, 695 F.3d at 329-30; United
States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).
The judgment of sentence is AFFIRMED.
3