FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 20, 2007
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 07-2030
v. (D. of N.M.)
MARTIN GARCIA-CASTANEDA, (D.C. No. CR-06-1516-MCA)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges. **
Martin Garcia-Castaneda appeals his sentence for illegal reentry after being
deported, in violation of 8 U.S.C. §§ 1326(a)(1) and (2). The district court
sentenced Garcia-Castaneda to 70 months imprisonment, at the bottom of the
applicable sentencing guideline range. The court also imposed three years of
supervised release. The court’s order specified Garcia-Castaneda’s supervised
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
release would actually be unsupervised, because Garcia-Castaneda will be
deported from the United States when he concludes his term in prison. Garcia-
Castaneda now argues that a term of “unsupervised” supervised release is an
unreasonable sentence.
We review the sentence imposed for reasonableness under the statutory
factors outlined in 18 U.S.C. § 3553(a). United States v. Hildreth, 485 F.3d 1120,
1127 (10th Cir. 2007). Reasonableness involves both procedural and substantive
components: “To impose a procedurally reasonable sentence, a district court must
calculate the proper advisory Guidelines range and apply the factors set forth in
§ 3553(a). A substantively reasonable sentence ultimately reflects the gravity of
the crime and the § 3553(a) factors as applied to the case.” Id. (internal citations
omitted). Garcia-Castaneda does not challenge the procedural reasonableness of
his sentence because he does not argue the court incorrectly calculated the
applicable guideline range or failed to consider the § 3553(a) factors. Instead he
argues the terms of his supervised release are substantively unreasonable because
they do not reflect the § 3553(a) factors as applied to his case.
Garcia-Castaneda failed to raise his substantive unreasonableness argument
in the sentencing court, so we review only for plain error. See United States v.
Lopez-Flores, 444 F.3d 1218, 1221 (10th Cir. 2006). We have previously
recognized a narrow exception to plain error review that does not apply here. In
Lopez-Flores, we declined to review for plain error when the defendant has failed
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to object to the length of his sentence, and in United States v. Mancera-Perez, —
F.3d —, No. 06-2059, 2007 WL 2823479 at *4 (10th Cir. Oct. 1, 2007), we
established the exception applies only when the defendant has already made an
argument for a lesser sentence during pre-sentence arguments. Admittedly
Garcia-Castaneda, like defendants who challenge the length of their sentences,
contests the substantive reasonableness of his supervised release; but in this case
“the usual reasons for requiring a contemporaneous objection apply” because
Garcia-Castaneda could have given the district court the opportunity to remedy
any unreasonableness when it announced Garcia-Castaneda’s supervised release
would be unsupervised. Lopez-Flores, 444 F.3d at 1221 (citing United States v.
Castro-Juarez, 425 F.3d 430, 433–34 (7th Cir. 2005)).
“Plain error occurs when there is (1) error, (2) that is plain, which (3)
affects substantial rights, and which (4) seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Lopez-Flores, 444 F.3d at 1222
(quoting United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005)).
We conclude the district court committed no error in sentencing Garcia-
Castaneda.
Garcia-Castaneda argues “unsupervised supervised release” is per se
unreasonable because the goal of supervised release—the supervision of the
defendant—cannot be achieved. Garcia-Castaneda’s argument amounts to a claim
that deportation is an unreasonable condition of supervised release because a
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defendant cannot be supervised outside of the United States. See United States v.
Brown, 54 F.3d 234, 239 (5th Cir. 1995) (quoting Probation Manual, Guide to
Judiciary Policies and Procedures IV, § 18 as providing for supervision only
“until the person actually leaves the United States.”).
The district court did not err by imposing an unsupervised term of
supervised release in the context of a defendant who will be deported. Congress
has required that supervised release be supervised only “to the degree warranted
by the conditions specified by the sentencing court.” 18 U.S.C. § 3624(e). And
Congress has recognized deportation as an acceptable condition of supervised
release even though the defendant cannot be supervised after deportation: “If an
alien defendant is subject to deportation, the court may provide, as a condition of
supervised release, that he be deported and remain outside the United States.” 18
U.S.C. § 3583(d); see also 8 U.S.C. § 1252(h) (“[S]upervised release . . . shall not
be grounds for deferral of deportation.”); United States Sentencing Guidelines
(“USSG”) § 5D1.3(d)(6) (naming deportation as a special condition of supervised
release). Finally, this court has recognized illegal reentry subsequent to
deportation as a violation of supervised release, even though the defendant was
unsupervised subsequent to his deportation. United States v. Rodriguez-
Quintanilla, 442 F.3d 1254, 1256 (10th Cir. 2006).
Furthermore, in this situation, unsupervised supervised release serves the
goals of the § 3553(a) sentencing factors. “Sentencing courts, in determining the
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conditions of a defendant’s supervised release, are required to consider, among
other factors, ‘the nature and circumstances of the offense and the history and
characteristics of the defendant,’ ‘the need . . . to afford adequate deterrence to
criminal conduct; . . . [and the need] to protect the public from further crimes of
the defendant.’” United States v. Johnson, 529 U.S. 53, 59 (2000) (quoting 18
U.S.C. § 3553(a)). We agree with the United States that the deterrent effect of a
supervised release term on a defendant like Garcia-Castaneda—who may try again
to reenter the United States—justifies the sentence conditions.
If Garcia-Castaneda enters the United States again during his term of
supervised release, he will be subject to significant additional prison time. A
defendant convicted for violation of supervised release may face (1) consecutive
prison terms and (2) additional criminal history points, both of which add
appreciably to a potential sentence. See Rodriguez-Quintanilla, 442 F.3d at 1259
(upholding sentence for revocation of supervised release added consecutively to
sentence for illegal reentry); USSG § 4A1.1(d) (adding criminal history points for
sentencing purposes when offense was committed while on supervised release);
United States v. Akinyemi, 108 F.3d 777, 780 (7th Cir. 1997) (upholding
application of USSG § 4A1.1(d) to illegal reentry after deportation during term of
supervised release). This risk is sufficient to make the term of unsupervised
supervised release a reasonable deterrent and thereby satisfy the § 3553(a)
sentencing factors.
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Accordingly, we AFFIRM.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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