United States v. Desiderio Orozco-Santos

Case: 12-50033 Document: 00512123070 Page: 1 Date Filed: 01/24/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 24, 2013
No. 12-50033
c/w No. 12-50042 Lyle W. Cayce
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DESIDERIO OROZCO-SANTOS,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 1:10-CR-400-1
USDC No. 1:11-CR-553-1
Before STEWART, Chief Judge, and OWEN and GRAVES, Circuit Judges.
PER CURIAM:*
Desiderio Orozco-Santos (Orozco) appeals the sentence imposed upon his
guilty plea to illegal reentry. See 8 U.S.C. § 1326. The district court sentenced
him within the Sentencing Guidelines to 21 months of imprisonment, to be
followed by three years of supervised release. The sentence was ordered to run
consecutively to the 12-month sentence imposed, at the same sentencing
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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hearing, upon revocation of Orozco’s supervised release from a prior illegal
reentry conviction and sentence. Orozco does not challenge the 12-month
revocation sentence.
As of November 1, 2011, § 5D1.1(c) of the Guidelines provides that
“ordinarily,” the district court “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.”
The commentary explains that the court “should . . . consider imposing a term
of supervised release on such a defendant if the court determines it would
provide an added measure of deterrence and protection based on the facts and
circumstances of a particular case.” § 5D1.1, comment. (n.5).
Orozco argues that the district court erred in imposing a term of
supervised release given that he is likely to be removed to Guatemala upon his
release from imprisonment. Instead of simply relying on “the guidelines,” as he
did in the district court when he objected, Orozco cites on appeal the sentencing
factors in § 3553(a), his inability to benefit from the rehabilitation aspect of
supervised release, and the district court’s alleged intent to punish him for a
subsequent illegal reentry if he returns. The record does not reflect that the
district court was alerted to those arguments or that it was able to respond
specifically to those arguments. See United States v. Dominguez-Alvarado, 695
F.3d 324, 327-28 (5th Cir. 2012). Plain error review is therefore applicable. See
id. However, even if it was not applicable, Orozco still could not prevail under
the less stringent reasonableness review. See Gall v. United States, 552 U.S. 38,
51 (2007).
To show plain error, Orozco must show a forfeited error that is clear or
obvious and that affects his substantial rights. See Puckett v. United States, 556
U.S. 129, 135 (2009). If he makes such a showing, we have the discretion to
correct the error but only if it seriously affects the fairness, integrity, or public
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reputation of judicial proceedings. See id. Under the reasonableness standard,
this court first reviews the procedural reasonableness of the sentence. Absent
procedural errors, this court reviews the substantive reasonableness of the
sentence under a deferential abuse of discretion standard, taking into account
the totality of the circumstances. Gall, 552 U.S. at 51; United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
At the sentencing hearing, the district court noted that Orozco’s criminal
history began in 1992 with theft and revealed almost 20 years of being a thief.
The district court noted further that the United States had been unable to
prevent Orozco from coming back. In overruling defense counsel’s objection to
the supervised release term, the district court stated, “This is a classic case as
to why supervised release needs to be maintained.”
The district court’s statements at sentencing adequately explained why
supervised release would provide “an added measure of deterrence and
protection.” See Dominguez-Alvarado, 695 F.3d at 330. Accordingly, Orozco has
not shown error, plain or otherwise. See id.
AFFIRMED.
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