United States v. Martin Avalos-Rico ( 2019 )


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  •                   United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 18-1564
    ___________________________
    United States of America
    lllllllllllllllllllllPlaintiff - Appellee
    v.
    Martin Avalos-Rico, also known as Rolando Blanco-Garcia, also known as Oscar
    Cruz-Tulum, also known as Alejandro Tamayo
    lllllllllllllllllllllDefendant - Appellant
    ____________
    Appeal from United States District Court
    for the Eastern District of Arkansas - Little Rock
    ____________
    Submitted: January 18, 2019
    Filed: March 22, 2019
    [Unpublished]
    ____________
    Before BENTON, MELLOY, and KELLY, Circuit Judges.
    ____________
    PER CURIAM.
    Martin Avalos-Rico pled guilty to illegal reentry after deportation, in violation
    of 8 U.S.C. § 1326(a) and (b)(2). The district court1 sentenced him to 70 months’
    1
    The Honorable Billy Roy Wilson, United States District Judge for the Eastern
    District of Arkansas.
    imprisonment and three years of supervised release. He appeals. Having jurisdiction
    under 28 U.S.C. § 1291, this court affirms.
    Avalos-Rico argues the district court erred by imposing supervised release on
    a deportable person without explanation. Avalos-Rico “did not object at sentencing
    to the imposition of supervised release,” and this court reviews “his claim for plain
    error.” United States v. Hernandez-Loera, 
    914 F.3d 621
    , 622 (8th Cir. 2019). “Under
    plain error review, it is the defendant’s burden to prove (1) there was error, (2) that
    was plain . . . (3) affected substantial rights,” and “affected the outcome of the district
    court proceedings.” United States v. Adejumo, 
    772 F.3d 513
    , 538 (8th Cir. 2014).
    Under U.S.S.G. § 5D1.1(c), “[t]he court ordinarily should not impose a term
    of supervised release in a case in which supervised release is not required by statute
    and the defendant is a deportable alien who likely will be deported after
    imprisonment.” U.S.S.G. § 5D1.1(c). “But the district court retains discretion to
    impose supervised release where it determines that supervised release ‘would provide
    an added measure of deterrence and protection based on the facts and circumstances
    of a particular case.’” 
    Hernandez-Loera, 914 F.3d at 622
    , quoting U.S.S.G. § 5D1.1
    comment. n.5. “[T]he term ‘ordinarily’ in section 5D1.1(c) is hortatory, not
    mandatory.” 
    Id. (cleaned up).
    Here, the district court determined—as allowed by the guidelines—that a term
    of supervised release would provide an added measure of deterrence. While it “did
    not specifically link its imposition of supervised release to the need for added
    deterrence, this is not reversible error.” 
    Id. The court
    knew that Avalos-Rico’s
    conviction was his third federal crime, and that after each previous term of
    imprisonment he was deported and then illegally reentered the United States. To
    deter him from reentering, the court also imposed a special condition of release: “If
    you are deported, a special condition is imposed where you will not be allowed to
    return to the United States during the period of your supervised release. If you do
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    return, it will be considered a violation of your supervised release.”2 “The record
    reflects that the district court considered the appropriate sentencing factors, the
    arguments of counsel, and the specific circumstances of the case.” 
    Hernandez-Loera, 914 F.3d at 622
    . “[T]he district court’s decision to impose supervised release is both
    consistent with the Sentencing Guidelines and an appropriate exercise of the district
    court’s wide latitude in determining a sentence.” 
    Id. at 623.
    Avalos-Rico believes that the district court erred in failing to explain his
    sentence. While the district court “might have said more,” where the “matter is as
    conceptually simple as in the case at hand and the record makes clear that the
    sentencing judge considered the evidence and arguments,” the law does not require
    a more extensive explanation. Rita v. United States, 
    551 U.S. 338
    , 359 (2007). See
    United States v. Bordeaux, 
    674 F.3d 1006
    , 1010 (8th Cir. 2012) (holding that this
    court does “not require lengthy explanations from district courts in [sentencing],
    especially when courts elect to impose within-range sentences”). The district court
    is required only to make clear that it considered the § 3553(a) factors. See United
    States v. Hernandez, 
    518 F.3d 613
    , 616 (8th Cir. 2008). This court “presume[s] that
    district judges know the law and understand their obligation to consider all the §
    3553(a) factors.” United States v. Greenwell, 483 Fed. Appx. 305, 306 (8th Cir.
    2012) (internal quotation marks omitted). Here, the district court stated it considered
    the § 3553(a) factors, and no one objected. It did not plainly err by failing to provide
    a more detailed explanation.
    Avalos-Rico contends his bottom-of-the-guidelines sentence is substantively
    unreasonable. This court considers “the substantive reasonableness of the sentence
    imposed under an abuse-of-discretion standard.” Gall v. United States, 
    552 U.S. 38
    ,
    2
    This court assumes the district court intended the special condition to apply
    unless Avalos-Rico receives permission to reenter from the Department of Homeland
    Security.
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    51 (2007). “Sentences within the guideline range are presumed to be substantively
    reasonable.” United States v. Rubashkin, 
    655 F.3d 849
    , 869 (8th Cir. 2011). Again,
    the district court considered the § 3553(a) factors. These included Avalos-Rico’s
    extensive criminal history for conspiracy to make false documents; conspiracy to
    possess with intent to distribute cocaine; conspiracy to produce, possess, and transfer
    false identification documents with the intent to defraud; unlawful reentry of a
    previously deported alien; possession of methamphetamine; and third-degree battery.
    The district court did not err in sentencing him within the guidelines.
    *******
    The judgment is affirmed.
    ______________________________
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