Case: 12-41129 Document: 00512304892 Page: 1 Date Filed: 07/11/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 11, 2013
No. 12-41129
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
CARLOS DAVID MIRANDA-DELGADO,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 1:12-CR-378-1
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
After pleading guilty of possession with the intent to distribute more than
100 kilograms of marihuana, Mexican national Carlos Miranda-Delgado was
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 12-41129
granted safety-valve consideration and was sentenced, within the sentencing-
guideline range but below the applicable statutory minimums, to thirty-seven
months of imprisonment and three years of supervised release (“SR”). For the
first time on appeal, he challenges the term of SR, urging that, because he is an
illegal alien likely to be deported following his release from prison and because
the guidelines advise that “ordinarily” no SR should be imposed in cases involv-
ing deportable aliens, the imposition of SR renders his sentence procedurally and
substantively unreasonable. Miranda-Delgado additionally preserves for further
review the argument that the imposition of a term of SR constituted an upward
departure requiring notice; he correctly concedes that the argument is foreclosed.
See United States v. Dominguez-Alvarado, 695 F.3d 324, 329 (5th Cir. 2012).
Because Miranda-Delgado did not preserve his reasonableness challenges
through objection in the district court, review is limited to plain error, a fact he
concedes.1 Id. at 327–28. To establish plain error, he 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, this
court has the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See id.
With respect to procedural reasonableness, Miranda-Delgado complains
that the district court gave no reasons for contravening the advice in United
States Sentencing Guidelines § 5D1.1(c) that SR should ordinarily not be
imposed on deportable aliens. The government counters that § 5D1.1(c) does not
apply, because the district court was statutorily required to impose a term of SR
following Miranda’s conviction of a drug-trafficking crime. The government cites
21 U.S.C. § 841(b)(1)(B)(vii), U.S.S.G. § 5D1.1(a), and 18 U.S.C. § 3583(a).
Miranda-Delgado responds that his qualification for relief under the safety-valve
1
Nevertheless, he also seeks to preserve for possible further review the argument that
no objection was required to preserve a substantive-reasonableness challenge.
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No. 12-41129
provision relieved the court from any statutory obligation to impose a term of SR
and triggered application of § 5D1.1(c).
There are no cases from this or any other circuit on point, so any error is
not clear or obvious under current law. See United States v. Rodriguez-Parra,
581 F.3d 227, 231 (5th Cir. 2009); United States v. Trejo, 610 F.3d 308, 319 (5th
Cir. 2010); United States v. Henao-Melo, 591 F.3d 798, 806 (5th Cir. 2009). Alter-
natively, even assuming arguendo that SR was not statutorily mandated, that
§ 5D1.1(c) applied, that the district court was required to state reasons for
imposing SR, and that the court’s failure to give reasons constituted clear or
obvious error, Miranda-Delgado has not shown that the error affected his sub-
stantial rights: The record does not suggest that, if the court had explained the
sentence in greater detail, it would have concluded that SR was unwarranted.
See Puckett, 556 U.S. at 135.
As to substantive reasonableness, Miranda-Delgado’s three-year SR term
is within the advisory guideline range, and he has not overcome the inference
that the district court considered the relevant factors. See United States v.
Mares, 402 F.3d 511, 519 (5th Cir. 2005). Accordingly, he has not established
that the SR was substantively unreasonable.
The judgment is AFFIRMED.
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