Case: 12-50583 Document: 00512338513 Page: 1 Date Filed: 08/12/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 12, 2013
No. 12-50583
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE JUAN VALDEZ ACOSTA, also known as Mario Rico, also known as Juan
Mario Lopez, also known as John Jose Chavez,
Defendant-Appellant
Cons. w/ No. 12-50585
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE JUAN VALDEZ-ACOSTA,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 3:12-CR-437-1
USDC No. 3:12-CR-1040-1
Case: 12-50583 Document: 00512338513 Page: 2 Date Filed: 08/12/2013
No. 12-50583 c/w No. 12-50585
Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Juan Valdez Acosta (Valdez) pleaded guilty to attempting to illegally
reenter the United States following removal and falsely claiming United States
citizenship. The district court sentenced him to concurrent sentences of 57
months of imprisonment and three years of supervised release and 36 months
of imprisonment and one year of supervised release. In a related case, the
district court revoked Valdez’s term of supervised release arising from a prior
illegal reentry conviction, and it sentenced him to a consecutive sentence of 24
months of imprisonment with no further term of supervised release. Valdez filed
notices of appeal from both judgments, and the cases were consolidated on
appeal. However, as Valdez has failed to raise any challenge to his supervised
release revocation and resulting sentence, he has abandoned those issues on
appeal. See United States v. Charles, 469 F.3d 402, 408 (5th Cir. 2006).
According to Valdez, the district court’s imposition of terms of supervised
release was procedurally and substantively unreasonable in light of the
Sentencing Guidelines’ recommendation that a court ordinarily should not
impose a term of supervised release on a deportable alien unless supervised
release would provide additional deterrence and protection based on the facts of
the case. See U.S.S.G. § 5D1.1(c), comment. (n.5). As Valdez challenges the
imposition of the terms of supervised release for the first time on appeal, we
review for plain error only. See United States v. Dominguez-Alvarado, 695 F.3d
324, 327-28 (5th Cir. 2012). Under the plain error standard, Valdez must show
a clear or obvious forfeited error that affected his substantial rights. See Puckett
v. United States, 556 U.S. 129, 135 (2009). If Valdez makes such a showing, we
*
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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Case: 12-50583 Document: 00512338513 Page: 3 Date Filed: 08/12/2013
No. 12-50583 c/w No. 12-50585
have discretion to correct the error but should do so only if the error seriously
affects the fairness, integrity, or public reputation of the proceedings. See id.
The district court’s imposition of terms of supervised release did not
constitute procedural or substantive error, plain or otherwise. The district
court’s discussion at sentencing of Valdez’s long criminal history and admitted
substance abuse problem satisfied the procedural requirement for a
“particularized explanation and concern [that] would justify imposition of a term
of supervised release.” Dominguez-Alvarado, 695 F.3d at 330. Moreover, we
have held that implicit consideration of § 5D1.1(c) is sufficient. United States v.
Becerril-Pena, 714 F.3d 347, 350 (5th Cir. 2013). “The amendments, after all,
did not alter our highly deferential review of within-Guidelines sentences,”
which requires the application of “a baseline infer[ence] that the [district] judge
has considered all the factors for a fair sentence set forth in the Guidelines.”
Becerril-Pena, 714 F.3d at 350 (internal quotation marks and citations omitted).
Valdez’s assertion that the district court committed substantive error by failing
to account for § 5D1.1(c) and the statutory sentencing factors of rehabilitation
and monitoring is insufficient to rebut the presumption of reasonableness
applicable to Valdez’s within-guidelines terms of supervised release. See United
States v. Cancino-Trinidad, 710 F.3d 601, 607-08 (5th Cir. 2013).
AFFIRMED.
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