United States v. Gerson Aplicano-Oyuela

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4244
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GERSON ARTURO APLICANO-OYUELA, a/k/a Hershen Arturo Oulala,
a/k/a Jose Roberto Ordonez, a/k/a Franklin Maradiaga Ortiz,
a/k/a Herzan Aplicano, a/k/a Jefferson Alexander Ordonez,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:13-cr-00444-PJM-1)
Argued: March 26, 2015 Decided: July 7, 2015
Before NIEMEYER, KING, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Niemeyer and Judge Harris joined.
ARGUED: Julie L.B. Johnson, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant. Nicholas Jacob
Patterson, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public
Defender, Baltimore, Maryland, Matthew McNicoll, Law Clerk,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, Kelly O’Connell Hayes, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee.
2
KING, Circuit Judge:
Gerson Arturo Aplicano-Oyuela (“Aplicano”), a native and
citizen of Honduras, pleaded guilty in the District of Maryland
to an illegal reentry offense that occurred after his removal
from this country following a felony conviction. See 8 U.S.C.
§ 1326(a), (b)(1). On March 13, 2014, the district court
sentenced Aplicano to sixteen months in prison and three years
of supervised release. On appeal, Aplicano challenges solely
his term of supervised release, contending that it was
procedurally and substantively unreasonable, and that the court
failed to properly advise him with respect to supervised release
before accepting his guilty plea. As explained below, we
affirm.
I.
A.
In 2002, at the age of nineteen, Aplicano illegally entered
the United States from Honduras. In August 2006, Aplicano
pleaded guilty to second-degree assault in Maryland using the
name “Hershen Arturo Oulala.” Two years later, he pleaded
guilty in Maryland to driving without a license, this time using
the alias “Gerson E. Aplicano.” In 2011, Aplicano was convicted
of criminal mischief in Ohio under the name “Jefferson Ordonez.”
That November, Aplicano was released from state confinement into
3
the custody of the Department of Homeland Security’s Immigration
and Customs Enforcement (“ICE”). In late 2011, Aplicano was
removed to Honduras.
Almost immediately after his removal, Aplicano unlawfully
reentered the United States. He was apprehended by border
patrol agents in McAllen, Texas, however, and removed to
Honduras in January 2012. Sometime between January 2012 and
March 2013, Aplicano again entered the United States without
authorization. In March and May 2013, he was arrested for
separate offenses in Maryland — on both occasions using the
alias “Frankin J. Maradiaga-Ortiz.” Although those charges were
later dismissed, Aplicano’s brushes with law enforcement
continued. In late May 2013, he was arrested for another
second-degree assault in Maryland. Following Aplicano’s guilty
plea on the assault charge in July of that year — under the
fictitious name “Jose Roberto Ordonez” — ICE again took custody
of Aplicano and obtained his fingerprints. ICE determined
Aplicano’s true identity by comparing those fingerprints to
fingerprint records in its database.
B.
By its indictment of August 26, 2013, the federal grand
jury in Maryland charged Aplicano with illegal reentry by an
alien who had previously been removed after a felony conviction,
in contravention of 8 U.S.C. § 1326(a) and (b)(1). Aplicano
4
initially pleaded not guilty to the indictment. On November 22,
2013, however, Aplicano submitted a letter (the “plea letter”)
through his attorney to the district court, explaining that
(1) he “knowingly and voluntarily agreed to plead guilty” to the
single charge in the pending indictment “without the benefit of
a plea agreement”; and (2) the plea letter would “assist the
Court in the Rule 11 colloquy.” J.A. 9. 1 Aplicano acknowledged
that the “maximum sentence” for the illegal reentry offense
includes “a period of supervised release of three (3) years.”
Id. at 10. According to the plea letter, Aplicano also
understood that
if he serves a term of imprisonment, is released on
supervised release, and then violates the conditions
of his supervised release, his supervised release
could be revoked — even on the last day of the term —
and [he] could be returned to custody to serve another
period of incarceration and a new term of supervised
release.
Id. Aplicano signed and dated the plea letter, acknowledging
therein that “I have carefully discussed this letter with my
attorney. I understand it, and I voluntarily agree to it.” Id.
at 13.
The district court conducted Aplicano’s plea hearing on
December 11, 2013. Consistent with the plea letter, Aplicano
1
Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.
5
pleaded guilty to the illegal reentry charge in the indictment.
Accepting Aplicano’s guilty plea, the court observed that there
was no plea agreement. The court acknowledged receipt of the
plea letter, however, and confirmed that Aplicano had reviewed
it with an interpreter. It advised Aplicano that, by pleading
guilty, he would be subject to the “maximum possible penalty”
for his offense, including “supervised release for a period of
three years.” J.A. 23. Aplicano indicated that he understood,
and his attorney agreed that the court could impose a sentence
“within its discretion.” Id. at 26.
On February 4, 2014, the probation officer presented
Aplicano’s presentence report (the “PSR”) to the district court.
According to the PSR, Aplicano’s base offense level for the
illegal reentry offense was level 8, pursuant to the Sentencing
Guidelines, but it was increased by four levels as a result of
his 2006 felony assault conviction in Maryland. See U.S.S.G.
§ 2L1.2(b)(1)(D) (2012). Aplicano’s offense level was then
reduced by two levels for acceptance of responsibility,
resulting in a total offense level of 10. The PSR identified
the applicable Guidelines range as ten to sixteen months, and
recommended a within-Guidelines sentence of thirteen months.
The PSR also indicated that the court was entitled to impose a
term of supervised release, in accordance with the following
provisions:
6
Statutory Provisions: If a term of imprisonment is
imposed, the Court may impose a term of supervised
release of not more than three years, pursuant to 18
U.S.C. § 3583(b)(2).
Guidelines Provisions: Supervised release is required
if the Court imposes a term of imprisonment of more
than one year or when required by statute, pursuant to
U.S.S.G. § 5D1.1(a). If a sentence of imprisonment of
one year or less is imposed, a term of supervised
release is not required but is optional, pursuant to
U.S.S.G. § 5D1.1(b). The guideline range for a term of
supervised release is at least one year but not more
than three years for a defendant convicted of a Class C
felony, pursuant to U.S.S.G. § 5D1.2(a)(2). However,
pursuant to U.S.S.G. § 5D1.1(c), the 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.
J.A. 79 (emphasis added). Invoking Aplicano’s two previous
assault convictions, the PSR recommended that the court impose a
two-year term of supervised release, in consideration of the
“safety of the community.” Id. at 85.
On February 28, 2014, Aplicano submitted a second letter to
the district court (the “sentencing letter”), acknowledging that
he did not dispute the PSR’s calculation of his total offense
level as 10. Aplicano urged the court, however, to vary
downward from the Guidelines range of ten to sixteen months, and
specifically sought an eight-month sentence in consideration of
the sentencing factors set forth in 18 U.S.C. § 3553(a). The
sentencing letter did not address the PSR’s recommendation of
7
supervised release, and Aplicano never sought to withdraw his
guilty plea.
C.
On March 13, 2014, the district court conducted Aplicano’s
sentencing hearing. Neither the prosecution nor Aplicano
objected to the PSR, and the court adopted “the factual findings
and advisory guideline application in the [PSR] without change.”
J.A. 36-37. The government then argued for a sentence of
sixteen months in prison, reminding the court that Aplicano had
illegally entered the United States three times, “[t]wice after
having been convicted of a crime and thereafter deported.” Id.
at 37. Aplicano urged the court to consider his “personal
history and characteristics,” and to impose “a sentence of eight
months or in the range of eight to ten months.” Id. at 41.
Aplicano maintained that an eight- to ten-month term of
imprisonment would permit him to apply for withholding of
removal based on his family’s status in Honduras. Specifically,
he explained that his family had been targeted by a Honduran
gang that had “executed his aunt, attempted to kill his cousin,”
and forced other family members into hiding. Id. Aplicano
suggested that a gunshot wound to his leg in 2011 — occurring
8
shortly after his first removal to Honduras — was the result of
a Honduran gang attack. 2
In fashioning the sentence, the district court focused on
Aplicano’s multiple illegal entries into the United States and
predicted that he would unlawfully return to this country post-
removal. Observing Aplicano’s propensity to commit crimes
following his illegal entries, the court further questioned why
Aplicano’s criminal history should “somehow be minimized in
order to accommodate his desire to stay” in the United States.
See J.A. 49. The court provided the following observations in
that regard:
• “We forget the crimes, when we talk about it, we
forget the fact that he ignores the law and comes
back.” Id. at 46.
• “I see he’s used aliases four times when he’s
been in court. . . . How is this man in any way
law abiding? How can I believe for a moment
anything he says about his future intention?”
Id.• “His real problem is he comes to this country
illegally and commits crimes. That’s what we’re
talking about. . . . He’s broken our law again
and again.” Id. at 46-47.
2 Aplicano represented to the sentencing court that a
nonprofit organization had agreed to help him apply for
immigration relief. He suggested that, if the court imposed a
sentence greater than ten months, the Bureau of Prisons would
relocate him to another detention facility and thereby cause him
to lose the assistance of the nonprofit organization.
9
• “[T]his is a man who is really not very law-
abiding when he gets here.” Id. at 48.
• “[Y]ou violated the law twice just coming into
the country unlawfully. While you were here, you
committed crimes, assaults, hurting other
people.” Id. at 51.
• “[I]t’s bad to come in unlawfully. It’s bad to
commit crimes while you’re here. The courts are
not going to stand for it.” Id. at 53.
• “I have no reason to believe you won’t do this
again. You [have] done it twice already.
There’s just no reason to believe you. . . .
You’ll find a reason to get back here again.”
Id.Although the district court evaluated the § 3553(a) factors
to determine whether Aplicano “merits some sort of special
solicitude,” see J.A. 51, it doubted the veracity of Aplicano’s
account of his life in Honduras, observing that other defendants
facing sentences under § 1326 have offered “the same story” as
Aplicano, see id. at 52. In light of Aplicano’s criminal
history, the court resolved to “opt in favor of protecting the
people that are [in the United States] rather than” rule in
favor of protecting Aplicano. Id. The court then advised
Aplicano that
I’m going to fashion a sentence so that if you
[illegally reenter the United States], it will be easy
to incarcerate you for a very long time. . . . You
deserve punishment. That’s not the main thing. You
certainly need to be deterred, because [it] looks to
me like you’re going to try this again. No reason not
to. And if you do, it should be easy for the
government to come back to court and easy to get a
longer sentence as well.
10
Id. at 53-54.
By its criminal judgment, the district court sentenced
Aplicano to sixteen months in prison and three years of
supervised release. 3 Acknowledging that the probation officer
had “some concerns with” imposing supervised release, the court
stated that supervised release was appropriate “for the
following reason: That I think [Aplicano] may well try to get
back in the country again.” J.A. 54. The court instructed the
probation officer that, if Aplicano illegally reentered the
United States, “I want you to obviously file a petition to
revoke [his supervised release] and we’ll get him in jail much
faster than if we went through a separate prosecution.” Id.
Then, speaking directly to Aplicano, the court warned,
“[U]nderstand, sir, that you will [then] face substantially
longer jail time.” Id. Notably, Aplicano did not object to the
term of supervised release when it was imposed by the court.
Now, however, Aplicano challenges his three-year term of
supervised release on the grounds that it is procedurally and
3 According to the criminal judgment, Aplicano, as a
condition of supervised release, must “be surrendered to a duly
authorized immigration official for deportation in accordance
with established procedures provided by the Immigration and
Naturalization Act. If ordered deported, [Aplicano] shall not
reenter the United States without express permission of the
Attorney General, or his/her designated representative.” J.A.
67.
11
substantively unreasonable, and that his guilty plea was fatally
flawed. He timely noticed this appeal, and we possess
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291.
II.
When a criminal defendant presents a sentencing issue that
was not properly preserved in the district court, we review the
issue for plain error only. See United States v. Hargrove, 625
F.3d 170, 184 (4th Cir. 2010) (applying plain error review to
substantive challenges); United States v. Lynn, 592 F.3d 572,
577 (4th Cir. 2010) (applying plain error review to procedural
challenges). Similarly, when a defendant contests the validity
of a guilty plea that he did not seek to withdraw, we also
review that challenge solely for plain error. See United States
v. Martinez, 277 F.3d 517, 524, 527 (4th Cir. 2002). To satisfy
plain error review, the defendant must establish that:
(1) there is a sentencing error; (2) the error is plain; and
(3) the error affects his substantial rights. See United States
v. Olano, 507 U.S. 725, 731-32 (1993). If the three-part plain
error test is satisfied, we must decide whether to cure the
error, “and should not do so unless the error ‘seriously affects
the fairness, integrity or public reputation of judicial
12
proceedings.’” Hargrove, 625 F.3d at 184 (quoting Olano, 507
U.S. at 736).
III.
In this appeal, Aplicano first contends that his three-year
term of supervised release is procedurally unreasonable because
the district court failed to specify appropriate reasons for its
imposition. Second, Aplicano argues that the term of supervised
release is substantively unreasonable because the court relied
on a mistaken premise — namely, that Aplicano would be
imprisoned faster if again caught illegally entering the United
States. Finally, Aplicano asserts that his guilty plea was not
knowingly and voluntarily entered because the court failed to
advise him of the nature and consequences of supervised release.
A.
Before assessing the merits of Aplicano’s contentions, we
briefly review the supervised release system, including its
impact on aliens facing post-incarceration removal. Supervised
release is the successor to parole, which was largely eliminated
by the Sentencing Reform Act of 1984. See United States v.
Buchanan, 638 F.3d 448, 451 (4th Cir. 2011). Notably,
“[s]upervised release is not a punishment in lieu of
incarceration”; rather, “it is a unique method of post-
confinement supervision that fulfills rehabilitative ends,
13
distinct from those served by incarceration.” Id. (internal
quotation marks omitted). Supervised release is mandatory if
required by statute. See 18 U.S.C. § 3583(a); U.S.S.G.
§ 5D1.1(a)(1). It is also mandatory if a defendant is sentenced
to a term of imprisonment exceeding one year, with the single
exception discussed below. See U.S.S.G. § 5D1.1(a)(2), (c).
Otherwise, a sentencing court may exercise discretion to impose
supervised release. See 18 U.S.C. § 3583(a). In each
situation, a court must consider the following § 3553(a) factors
before imposing supervised release: (1) the nature and
circumstances of the offense; (2) the defendant’s history and
characteristics; (3) the need to deter criminal conduct; (4) the
need to protect the community from future crimes; and (5) the
pertinent policy statements issued by the Sentencing Commission.
See id. § 3583(c).
In 2011, the Sentencing Guidelines were amended to add
section 5D1.1(c), which contains the exception to the general
supervised release rules. Section 5D1.1(c) provides that, if
supervised release is not required by statute and the defendant
is an alien facing post-incarceration removal, a sentencing
“court ordinarily should not impose a term of supervised
release.” U.S.S.G. § 5D1.1(c). Rather, if the defendant
illegally reenters the United States in contravention of a
condition of supervised release, “the need to afford adequate
14
deterrence and protect the public ordinarily is adequately
served by a new prosecution.” Id. § 5D1.1 cmt. n.5.
Nevertheless, the Guidelines do not foreclose the possibility of
supervised release being imposed on removable aliens. Indeed,
if a sentencing court determines that a removable alien requires
“an added measure of deterrence and protection based on the
facts and circumstances of a particular case,” then “[t]he court
should . . . consider imposing a term of supervised release.”
Id.
B.
We first consider whether the district court’s imposition
of the three-year term of supervised release was procedurally
unreasonable. Aplicano contends that, because supervised
release is ordinarily discouraged for removable aliens pursuant
to Guidelines section 5D1.1(c), the court erroneously imposed
supervised release by “fail[ing] to adequately explain its
justification for deviating from this guideline.” See Br. of
Appellant 11; see also Gall v. United States, 552 U.S. 38, 51
(2007) (recognizing as procedural error the sentencing court’s
failure to “adequately explain the chosen sentence — including
an explanation for any deviation from the Guidelines range”).
We are without published authority on whether imposition of
supervised release on an alien who is likely to be removed is
15
procedurally reasonable. 4 Although we are mindful that such a
post-incarceration condition is “ordinarily” discouraged by the
Guidelines for a removable alien, the term “ordinarily” in
section 5D1.1(c) is “hortatory, not mandatory.” See United
States v. Dominguez-Alvarado, 695 F.3d. 324, 329 (5th Cir.
2012). Moreover, Application Note 5 to section 5D1.1 provides
that a sentencing court “should, however, consider” imposing a
term of supervised release in certain situations. Accordingly,
the imposition of “supervised release is appropriate and not a
departure from the . . . Guidelines if the district court finds
that supervised release would provide an added measure of
deterrence and protection based on the facts and circumstances
of a particular case.” United States v. Alvarado, 720 F.3d 153,
4
In our nonprecedential unpublished decisions reviewing
imposition of supervised release on aliens who are likely to be
removed post-incarceration, we have generally affirmed. See
United States v. Jeronimo-Rodas, 583 F. App’x 122, 123 (4th Cir.
2014); United States v. Hosein, 581 F. App’x 199, 200 (4th Cir.
2014); United States v. Xutuc-Lopez, 547 F. App’x 302, 302 (4th
Cir. 2013); United States v. Deleon-Ramirez, 542 F. App’x 241,
247 (4th Cir. 2013); United States v. Cruz, 538 F. App’x 289,
290 (4th Cir. 2013); United States v. Amezquita-Franco, 523 F.
App’x 971, 974 (4th Cir. 2013); United States v. Sanchez-Mendez,
521 F. App’x 142, 144 (4th Cir. 2013); United States v.
Hernandez, 519 F. App’x 820, 823 (4th Cir. 2013); United States
v. Ramirez, 503 F. App’x 226, 227 (4th Cir. 2013); United States
v. Jimenez-Manuel, 494 F. App’x 411, 413 (4th Cir. 2012). But
see United States v. Bautista-Villanueva, 546 F. App’x 260, 261
(4th Cir. 2013) (remanding for the sentencing court to “perform
an individualized assessment of the propriety of imposing a term
of supervised release”).
16
155 (2d Cir. 2013) (internal quotation marks omitted); see also
Dominguez-Alvarado, 695 F.3d at 329.
We are satisfied that the district court appropriately
determined that imposing a term of supervised release on
Aplicano would provide an added measure of deterrence and
protection for the community. At sentencing, the court made
repeated references to its desire to deter Aplicano from
illegally entering the United States for a fourth time and
continuing his pattern of committing criminal acts. The court
expressed its desire to protect “the people that are here rather
than” protect Aplicano. See J.A. 52. The court also explained
that punishing Aplicano was “not the main thing,” suggesting
that Aplicano’s “need to be deterred” was a greater concern.
See id. at 54. The court then informed Aplicano that it would
impose a term of supervised release “for the following reason:
That I think you may well try to get back in the country again.”
Id. In these circumstances, the imposition of supervised
release was appropriate under the Guidelines.
In so ruling, we recognize that the district court failed
to specifically discuss the Guidelines or “state that supervised
release (as opposed to [Aplicano’s] sentence generally) was
designed to provide an additional measure of deterrence.” See
Alvarado, 720 F.3d at 159. Nonetheless, as the Second Circuit
has determined, where a sentencing court (1) is aware of
17
Guidelines section 5D1.1(c); (2) considers a defendant’s
specific circumstances and the § 3553(a) factors; and
(3) determines that additional deterrence is needed, “[n]othing
more [is] required.” Id. But see United States v. Solano-
Rosales, 781 F.3d 345, 353 (6th Cir. 2015) (explaining that the
sentencing court erred “in failing to acknowledge the guidelines
recommendation against supervised release embodied in § 5D1.1(c)
or discuss its decision to take a different course of action in
Defendant’s case”). We agree with the Second Circuit’s analysis
and readily conclude that the three factors it has identified
are present here.
As for the first factor, the district court was aware of
§ 5D1.1(c) because it adopted the PSR “without change,”
including the “advisory guideline application.” See J.A. 37.
The PSR explained that supervised release is generally required
where a term of imprisonment exceeding one year is imposed,
except that supervised release ordinarily should not be ordered
for a removable alien. The PSR then recommended a term of
supervised release due to Aplicano’s particular characteristics
— that is, his propensity to commit violent crimes. By way of
the PSR, the court was aware of section 5D1.1(c)’s substantive
recommendation against the imposition of supervised release on
removable aliens. Indeed, the court’s comment at sentencing
that it knew the probation officer had “some concerns with”
18
imposing supervised release plainly referred to the provision of
section 5D1.1(c) that courts “ordinarily” should not order
supervised release for a removable alien. See id. at 54.
With respect to the second factor, the district court
considered Aplicano’s specific circumstances and the other
§ 3553(a) factors in fashioning his term of supervised release.
More specifically, the court acknowledged Aplicano’s account of
the violence he and his family had suffered in Honduras, but
questioned the genuineness of that story. See 18 U.S.C.
§ 3553(a)(1). Observing Aplicano’s history of violent criminal
activities while in the United States, see id., the court opted
to protect the people of this country from further crimes by
Aplicano, see id. § 3553(a)(2)(C). The court also determined
that Aplicano’s history of illegal entries justified deterring
him from further unlawful reentries. See id. § 3553(a)(2)(B).
Aplicano argues that the district court’s analysis of the
§ 3553(a) factors was limited to his term of imprisonment, and
thus did not apply to his term of supervised release. He
suggests that, because the court’s analysis of the § 3553(a)
factors preceded its imposition of a term of imprisonment, the
consideration of those factors supported only the term of
imprisonment. A court’s sentencing rationale, however, can
support both imprisonment and supervised release. See United
States v. Clark, 726 F.3d 496, 501 (3d Cir. 2013) (“[W]e have
19
never required that a district court conduct two § 3553(a)
analyses, one related to the term of imprisonment and a second
related to the term of supervised release.”); United States v.
Presto, 498 F.3d 415, 419 (6th Cir. 2007) (concluding that the
sentencing court did not commit procedural error when it
“engaged in a single consideration of the [§ 3553(a)] sentencing
factors, which embraced both the incarceration sentence and the
supervised release term”).
Finally, the district court determined that Aplicano
required additional deterrence, satisfying the third factor.
The court’s statement to Aplicano immediately after imposing
supervised release — “I think you may well try to get back in
the country again” — demonstrates that proposition. See id.
Accordingly, Aplicano’s challenge to the procedural
reasonableness of his supervised release term fails to survive
the first prong of plain error review, in that there was no
error.
C.
We next assess the substantive reasonableness of Aplicano’s
term of supervised release. When reviewing a sentence for
substantive reasonableness, we must “take into account the
totality of the circumstances, including the extent of any
variance from the Guidelines range. If the sentence is within
the Guidelines range, the appellate court may, but is not
20
required to, apply a presumption of reasonableness.” Gall, 552
U.S. at 51. A “defendant can only rebut the presumption by
demonstrating that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks
omitted). If the district court relies on an improper factor, a
sentence may be substantively unreasonable. See id. at 378.
Because we agree that the imposition of supervised release on
Aplicano was consistent with the Guidelines, we presume the
substantive reasonableness of Aplicano’s sentence.
Aplicano’s challenge to his term of supervised release
hinges on the district court’s remark that, if Aplicano violated
the conditions of supervised release, the authorities could “get
him in jail much faster than if we went through a separate
prosecution.” See Br. of Appellant 20 (citing J.A. 54).
Aplicano contends that the court’s premise was flawed, and, as
such, constitutes substantive error. We disagree. Cf.
Morrissey v. Brewer, 408 U.S. 471, 479 (1972) (explaining that a
revocation of parole “is often preferred to a new prosecution
because of the procedural ease of recommitting the individual on
the basis of a lesser showing by the State”). Furthermore, the
court’s sentencing rationale was not based on an impermissible
factor. Indeed, the admonition that Aplicano would be “in jail
much faster” is yet another indication of the court’s intention
21
to provide deterrence and protection for the community. See 18
U.S.C. § 3553(a)(2)(B), (C). In these circumstances, Aplicano’s
sentence was substantively reasonable. Because there was no
error in this respect, this claim also fails the first prong of
plain error review.
D.
Finally, we assess whether the district court “failed to
sufficiently explain the nature and consequences of supervised
release,” in contravention of Rule 11 of the Federal Rules of
Criminal Procedure. See Br. of Appellant 22. Aplicano urges us
to either set aside his guilty plea or direct the district court
to resentence him without a term of supervised release.
Rule 11(b)(1)(H) provides, in pertinent part, that
“[b]efore the court accepts a plea of guilty [it] must inform
the defendant of, and determine that the defendant
understands, . . . any maximum possible penalty, including
imprisonment, fine, and term of supervised release.” We have
further determined that Rule 11 requires a district court “to
personally inform the defendant of, and ensure that he
understands, the nature of the charges against him and the
consequences of his guilty plea.” United States v. Hairston,
522 F.3d 336, 340 (4th Cir. 2008) (internal quotation marks
omitted).
22
During the plea hearing, the district court advised
Aplicano that “the maximum possible penalty in this case
[includes] supervised release for a period of three years.”
J.A. 23. Aplicano indicated to the court that he understood.
Furthermore, Aplicano acknowledged that he had reviewed the plea
letter — provided by him to “assist the Court in the Rule 11
colloquy” — with his interpreter. See id. at 9. The plea
letter, signed and dated by Aplicano, stated that if Aplicano
violated his supervised release, he “could be returned to
custody to serve another period of incarceration and a new term
of supervised release.” Id. at 10. When questioned by the
court late in the plea hearing about whether he understood the
proceedings, Aplicano responded, “I understand everything.” Id.
at 31.
Aplicano now argues that, despite his understanding of the
consequences of supervised release — which he acknowledged in
the plea letter — the court inadequately advised him on the
subject of supervised release at the plea hearing. Relying on
our decision in United States v. Thorne, 153 F.3d 130 (4th Cir.
1998), Aplicano contends that the plea letter did “not supplant
the district court’s obligations” to orally explain the nature
of supervised release. See Reply Br. of Appellant 6. In
Thorne, we determined that the sentencing court erred by failing
to properly inform the defendant of the nature of supervised
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release, even though the written plea agreement specified that
the defendant was subject to a term of supervised release. See
153 F.3d at 133.
Even if the sentencing court erred in that regard and such
error was plain — satisfying the first two prongs of plain error
review — a vacatur of Aplicano’s guilty plea would not be
warranted because Aplicano has not shown that such an error
affected his substantial rights. See United States v. Olano,
507 U.S. 725, 734 (1993). That is, Aplicano has not shown a
“‘reasonable probability that, but for the error, [he] would not
have entered the plea.’” See United States v. Sanya, 774 F.3d
812, 817 (4th Cir. 2014) (quoting United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004)). Importantly, Aplicano does
not point to anything in the record suggesting that he would not
have pleaded guilty absent the court’s failure to advise him of
the nature and consequences of supervised release.
Indeed, the fact that Aplicano made no effort to withdraw
his guilty plea after the district court imposed the term of
supervised release is compelling “evidence that he would have
entered the plea regardless.” See United States v. Massenburg,
564 F.3d 337, 344 (4th Cir. 2009). And there is no dispute that
the prosecution’s case against Aplicano was strong. See id.Accordingly, the record fails to show a “reasonable probability”
that Aplicano would have refrained from pleading guilty but for
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the assumed Rule 11 error, and Aplicano is unable to satisfy the
third prong of the plain error analysis. See id. at 343. Thus,
this appellate contention also fails.
IV.
Pursuant to the foregoing, we affirm the judgment of the
district court.
AFFIRMED
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