Case: 12-50786 Document: 00512365082 Page: 1 Date Filed: 09/06/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 6, 2013
No. 12-50786
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MANUEL ALONZO-LLANAS,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:12-CR-98-1
Before BENAVIDES, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Manuel Alonzo-Llanas pleaded guilty to one count of illegal reentry. The
district court sentenced him to 60 months in prison, within the guidelines range
of 57 to 71 months, to be followed by three years of supervised release. Alonzo-
Llanas appeals, contending that the district court erred by imposing supervised
release in light of § 5D1.1(c) of the United States Sentencing Guidelines. As he
concedes, because he did not object in the district court, our review is for plain
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50786
error. See United States v. Dominguez-Alvarado, 695 F.3d 324, 327-28 (5th Cir.
2012). For the following reasons, we affirm.
Section 5D1.1(c), which took effect before Alonzo-Llanas was sentenced,
provides that a court ordinarily should not impose supervised release if it is not
statutorily required and the defendant is a deportable alien who likely will be
deported following imprisonment. The court retains discretion to impose
supervised release if 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); Dominguez-Alvarado, 695 F.3d at 328. Although stating that it
relied on the 2011 Guidelines Manual, which contains § 5D1.1(c), the
presentence report cited the prior version of § 5D1.1. There is no indication that
the district court was aware of or considered § 5D1.1(c). Thus, we agree with
Alonzo-Llanas that the district court committed error and that the error was
clear or obvious. See United States v. Cancino-Trinidad, 710 F.3d 601, 606 (5th
Cir. 2013).
Alonzo-Llanas must also show an effect on his substantial rights, i.e., that
there is a reasonable probability that, but for the error, the district court would
not have imposed a supervised release term. See Cancino-Trinidad, 710 F.3d at
606. His criminal history, which included two convictions for aggravated assault
with a deadly weapon, support a conclusion that supervised release will provide
added protection. See § 5D1.1, comment. (n.5); Cancino-Trinidad, 710 F.3d at
606. Further, there is no indication in the record whether the district court
likely would have reached a different result if it had been applying the correct
version of the Guideline. See, e.g., United States v. Mares, 402 F.3d 511, 521-22
(5th Cir. 2005) (employing similar analysis in context of sentencing under
mandatory rather than advisory guidelines regime). These facts weigh against
a conclusion that Alonzo-Llanas’s substantial rights were affected.
We need not reach that issue, however, as we conclude that even if the
first three prongs of the plain error test are satisfied, the error does not seriously
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No. 12-50786
affect the fairness, integrity, or public reputation of judicial proceedings. See
Puckett v. United States, 556 U.S. 129, 135 (2009). The district court had
discretion to impose supervised release, notwithstanding § 5D1.1(c)’s guidance
against it. See Dominguez-Alvarado, 695 F.3d at 329. In addition, Alonzo-
Llanas will not be subject to supervision if he does not return to this country
illegally, which he promised the district court he would not do. Thus, the error
does not warrant the exercise of our discretion to correct it.
AFFIRMED.
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