United States v. Carlos Bautista-Villanueva

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4828

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CARLOS BAUTISTA-VILLANUEVA, a/k/a Andres Bautista
Villanueva, a/k/a Roberto Gutierrez Rodriguez, a/k/a Paulo
Bautista,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:12-cr-00222-WDQ-1)

Argued: September 20, 2013 Decided: November 21, 2013

Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Vacated and remanded by unpublished per curiam opinion. Judge
Niemeyer wrote a dissenting opinion.

ARGUED: Joanna Beth Silver, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Baltimore, Maryland, for Appellant. Rod J.
Rosenstein, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore,
Maryland, for Appellant. Roger K. Picker, Special Assistant
United States Attorney, UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Section 5D1.1(c) of the United States Sentencing Guidelines

(USSG) provides that “[t]he court ordinarily 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.” USSG

§ 5D1.1(c). Official commentary to this Guideline explains that

“[t]he court should, however, 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.”

USSG § 5D1.1, comment. (n.5).

In the instant case, supervised release is not required by

statute and the defendant, Carlos Bautista-Villanueva

(Defendant), is a deportable alien who likely will be deported

back to Mexico after serving his sentence of fifty-seven months’

imprisonment resulting from his conviction on one count of

illegal reentry by an aggravated felon, 8 U.S.C. §§ 1326(a) and

(b)(2). Although the district court imposed a three-year term

of supervised release upon Defendant, the record does not

disclose whether the district court did so after determining

that imposition of a term of supervised release upon Defendant

would provide an added measure of deterrence and protection

based on the facts and circumstances of Defendant’s case, such

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that his case would not be considered ordinary for purposes of

USSG § 5D1.1(c).

On appeal, Defendant acknowledges that the Guidelines are

advisory as opposed to mandatory; however, Defendant argues that

USSG § 5D1.1(c) “must have some effect, and it cannot be

procedurally reasonable for a district court to ignore it

completely, with no supportive findings, explicit or implicit,

in the record.” (Defendant’s Opening Br. at 14). “For this

reason,” Defendant contends, “the imposition of a period of

supervised release in this case was procedurally unreasonable,

and this Court should vacate the sentence and remand the case

for resentencing.” Id.

Contrary to the government’s position on appeal, the record

does not disclose whether the district court, in imposing a

three-year term of supervised release upon Defendant, considered

USSG § 5D1.1(c) and its relevant commentary sufficiently for us

to conduct meaningful appellate review regarding whether the

district court performed an adequate individualized assessment

of the propriety of imposing a term of supervised release upon

Defendant. Accordingly, we vacate Defendant’s sentence and

remand this case to the district court for the limited purpose

of the district court revisiting its decision to impose a term

of supervised release upon Defendant. We express no opinion

regarding how the district court should rule on this issue.

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However, in so ruling, the district court must perform an

individualized assessment of the propriety of imposing a term of

supervised release upon Defendant sufficient for us to conduct

meaningful appellate review, including explaining its

consideration of the advisory guidance provided in USSG

§ 5D1.1(c) and the official commentary to this Guideline, see

USSG § 5D1.1, comment. (n.5); see United States v. Carter, 564

F.3d 325, 328 (4th Cir. 2009) (“Procedural errors include . . .

failing to adequately explain the chosen sentence—including an

explanation for any deviation from the Guidelines range.”

(internal quotation marks omitted)). If the district court

sentences Defendant to a term of supervised release on remand,

and if Defendant believes the district court procedurally erred

with respect to imposing such term, Defendant may note another

appeal on that ground in compliance with Federal Rule of

Appellate Procedure 4(b).

VACATED AND REMANDED

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NIEMEYER, Circuit Judge, dissenting:

The district court conducted a thorough, individualized

assessment of Bautista-Villanueva’s criminal history and

personal characteristics and provided a reasonable justification

for the sentence it imposed on him. The majority admits as

much, as it finds no fault with the district court’s explanation

for imposing the sentence of imprisonment. Nonetheless, the

majority holds that the district court erred by imposing a term

of supervised release without giving an explicit justification

in view of U.S.S.G. § 5D1.1(c) (stating that a court should

“ordinarily” not impose a term of supervised release for a

defendant who “likely will be deported after imprisonment”).

After noting during the sentencing hearing the fact that

Bautista-Villanueva had twice before illegally entered the

United States, the district court imposed a three-year term of

supervised release as part of Bautista-Villanueva’s sentence,

even though he would likely be deported after serving his prison

term, and it required, as a condition, that Bautista-Villanueva

“cooperat[e] with ICE officials” and, if deported, “not reenter

the United States without express permission of the Attorney

General” or his representative. The majority faults the

district court’s imposition of supervised release because

U.S.S.G. § 5D1.1(c) provides that supervised release is not

ordinarily imposed when the defendant will likely be deported

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and the court did not reference § 5D1.1(c) and explain why this

case was not ordinary.

While the district court did not say explicitly, when

imposing supervised release, why this case was extraordinary,

the record shows that the district court understood that it was

not the ordinary situation involving the deportation of an alien

who had committed a crime in the United States. The court’s

discussion of Bautista-Villanueva’s repeated illegal entries and

its requirement that he not reenter make clear that the court

was concerned about deterrence.

In requiring a more explicit and detailed explanation, the

majority has created a new procedural formalism that will be

required whenever courts sentence deportable aliens to

supervised release.

Because I think such a requirement finds no support in the

Sentencing Guidelines and because the sentencing court in the

present case made clear that it was imposing supervised release

because of Bautista-Villanueva’s history and as a deterrence, I

respectfully dissent.

I

Carlos Bautista-Villanueva is a 36-year-old citizen of

Mexico, who first entered the United States illegally when he

was 13. He was removed from the United States in 2007 and

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illegally entered the country a second time in 2010. When

Bautista-Villanueva was thereafter found in Baltimore, Maryland,

he was charged with unlawful reentry by an aggravated felon, in

violation of 8 U.S.C. § 1326(a), (b)(2), and pleaded guilty to

the charge.

In the presentence report, the probation officer noted that

Bautista-Villanueva’s “guideline range for . . . supervised

release” was one to three years. But, the report continued,

“[p]ursuant to U.S.S.G. §5D1.1(c), the Court ordinarily should

not impose a term of supervised release in a case in which the

defendant is a deportable alien who will likely be deported

after imprisonment.” The presentence report noted that

Bautista-Villanueva would likely be deported following the

service of his sentence.

At the sentencing hearing, Bautista-Villanueva’s counsel

urged the court to issue a light term of imprisonment and noted

that “pursuant to the Guideline, 5D1.1(c), . . . a period of

supervised release is not necessary, nor is it really

recommended in this case, because he will be deported.” Before

imposing its sentence, the court recounted Bautista-Villanueva’s

criminal history and described his record of illegal entry,

stating, “Mr. Bautista-Villanueva is a citizen of Mexico. He

was removed from the United States to Mexico on December 5,

2007, reentered the country without authorization, and was found

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here on March 28th, 2012, when he was taken into custody by ICE

officers.” The court went on to recount aspects of Bautista-

Villanueva’s personal history -- that he had an abusive father,

completed eleventh grade, had been employed in the construction

industry, and had a wife and son. It then provided the

following assessment:

In this case, the seriousness of his criminal
history, I think, is balanced against his age
and . . . the fact that . . . the offenses were
committed over a relatively brief period of time.
Accordingly, I do believe that there is some over-
representation of seriousness of the record.
Accordingly, I will grant a departure – a one criminal
history level departure downward, and I believe that,
given the Defendant’s age and plans for life in Mexico
and what I perceive as a reduced likelihood of
recidivism, a sentence at the bottom of the advisory
guidelines range . . . is sufficient but not greater
than necessary to reflect the seriousness of the
offense, provide just punishment and adequate
deterrence, promote respect for the law, and protect
the public from further crimes of the Defendant.
Accordingly, Mr. Bautista-Villanueva, I commit
you to the custody of the Attorney General or his
authorized designee in the Bureau of Prisons to serve
a term of imprisonment of 57 . . . months; impose a
three-year term of supervised release with special
conditions of cooperation with ICE officials, and that
you follow any lawful order entered in your case by
the Immigration authorities.
I will also recommend drug and alcohol screening
and treatment as a part of the supervised release.

(Emphasis added). In its written judgment, the court included

as conditions of Bautista-Villanueva’s supervised release: “The

defendant shall be surrendered to a duly authorized immigration

official for deportation in accordance with established

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procedures provided by the Immigration and Naturalization Act.

If ordered deported, the defendant shall not reenter the United

States without express permission of the Attorney General, or

his/her designated representative.”

II

The majority has no qualms with the district court’s

explanation and justification for the 57-month term of

imprisonment, but it finds that court’s explanation for the

imposition of supervised release procedurally unreasonable. On

remand, the majority would have the district court “explain[]

its consideration of the advisory guidance provided in USSG §

5D1.1(c) and the official commentary to this Guideline.” Ante,

at 5.

To my knowledge, this is the first instance where an

appellate court has reversed a district court for inadequately

justifying an imposition of supervised release under § 5D1.1(c). *

*
I am aware of two cases in which appellate courts have
found error with sentencing courts’ impositions of supervised
release under § 5D1.1(c). United States v. Butler, No. 11-4383,
2013 U.S. App. LEXIS 14736 (3d Cir. July 19, 2013); United
States v. Chavez-Trejo, No. 12-40006, 2013 U.S. App. LEXIS 6734
(5th Cir. Apr. 3, 2013) (per curiam). In both of these cases,
the sentencing court had made clear errors of law: in Butler,
by relying on the outdated 2010 Guidelines; and, in Chavez-
Trejo, by mistakenly stating that supervised release was
mandatory. Neither of these cases are akin to the present facts,
though, where the court was presented with correct statements of
law and simply failed to explicitly justify the term of
supervised release.

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The majority appears to be fashioning a new procedural rule that

district courts hereafter must always explicitly justify an

imposition of supervised release on deportable aliens, perhaps

with specific reference to U.S.S.G. § 5D1.1(c).

Yet, U.S.S.G. § 5D1.1(c) does not impose such a procedural

requirement. Indeed, the language of § 5D1.1(c) is

conspicuously hortatory (“The court ordinarily should not impose

a term of supervised release . . .”). See United Sates v.

Dominguez-Alvarado, 695 F.3d 324, 329 (5th Cir. 2012). And the

Commentary to § 5D1.1(c) instructs courts to “consider imposing

a term of supervised release . . . if the court determines it

would provided an added measure of deterrence and protection

based on the facts and circumstances of a particular case.”

(Emphasis added). This is because, as the Fifth Circuit has

noted, the addition of § 5D1.1(c) was “animated primarily by

administrative concerns inherent in trying to administer

supervised release as to someone who has been deported.” United

States v. Becerril-Peña, 714 F.3d 347, 350 (5th Cir. 2013).

Like the Fifth Circuit, I can find no indication that the

Sentencing Commission intended § 5D1.1(c) to provide deportable

aliens with a new procedural shield to protect them from

supervised release. See Becerril-Peña, 714 F.3d at 350.

Indeed, such a motive would have been rather illogical. As

Bautista-Villanueva’s counsel admitted at oral argument,

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supervised release is inconsequential to aliens who do not

illegally reenter the United States. Supervised release for

deportable aliens is only useful because it streamlines removal

proceedings against aliens who do illegally reenter. I find it

difficult to believe that the Sentencing Commission promulgated

§ 5D1.1(c) to make more difficult the removal of illegal

reentrants. Indeed, if that were the goal, supervised release

would rationally never be permitted for deportable aliens. To

the contrary, § 5D1.1(c) appears to be aimed at eliminating the

bureaucratic machinery of supervised release in cases where it

is unnecessary, while nonetheless giving district courts the

option of imposing it to provide an additional deterrence where

illegal reentry might likely follow.

I would hold that a district court fulfills its procedural

obligations in these circumstances by “apply[ing] the relevant §

3553(a) factors to the specific circumstances of the case before

it.” United States v. Carter, 564 F.3d 325, 328 (4th Cir.

2009). And when a court imposes supervised release on a

deportable alien, the relevant § 3553(a) factors include

deterrence and protection of the public. The district court

would need to “‘state in open court’ the particular reasons

supporting its chosen sentence.” Id. (citing 18 U.S.C. §

3553(c)) (emphasis added). But rather than requiring a district

court to repeat its justification for both the term of

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imprisonment and the term of supervised release, I would find a

district court’s explanation procedurally reasonable as long as

it sufficiently justified the sentence as a whole.

This is just the approach that every circuit has adopted up

until this point – including ours. See, e.g., United States v.

Ramirez, 503 F. App’x 226 (4th Cir. 2013) (per curiam)

(affirming a sentence of supervised release for a deportable

alien even though the district court did not explicitly justify

the supervised release or discuss § 5D1.1(c)); United States v.

Deleon-Ramirez, No. 12-4642, 2013 U.S. App. LEXIS 20906 (4th

Cir. Oct. 16, 2013) (per curiam) (same); United States v.

Sanchez-Mendez, 521 F. App’x 142 (4th Cir. 2013) (per curiam)

(same); United States v. Jimenez-Manuel, 494 F. App’x 411 (4th

Cir. 2012) (per curiam) (same); United States v. Alvarado, 720

F.3d 153, 158 (2d Cir. 2013) (“A district court is not required

explicitly to link its finding that added deterrence is needed

to its decision to impose a term of supervised release”); United

States v. Valdez-Cruz, 510 F. App’x 834, 840 (11th Cir. 2013)

(per curiam) (“Although Valdez-Cruz argues that the court failed

to give a case-specific reason for imposing a term of supervised

release, the district court specifically discussed the need for

deterrence in Valdez-Cruz’s case and the record supports the

court’s determination”); Dominguez-Alvarado, 695 F.3d at 330

(finding the following explanation sufficient to justify

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supervised release for a deportable alien: “I gave the sentence

after looking at the factors in 3553(a), to deter future

criminal conduct, his particular background and characteristics,

which apparently do not make him a welcome visitor to this

country”).

I would hold further that the district court in the present

case “adequately explain[ed] the chosen sentence to allow for

meaningful appellate review and to promote the perception of

fair sentencing.” Gall v. United States, 552 U.S. 38, 50

(2007). The district court’s “individualized assessment”

included a careful consideration of Bautista-Villanueva’s

criminal and personal history. Carter, 564 F.3d at 330. The

court noted that the sentence it was imposing was “sufficient

but not greater than necessary to reflect the seriousness of the

offense, provide just punishment and adequate deterrence,

promote respect for the law, and protect the public from further

crimes of the Defendant.” It is clear from the record that the

district court imposed the term of supervised release because it

feared that Bautista-Villanueva would illegally return to the

United States. The district court noted that Bautista-

Villanueva had illegally entered the United States twice in the

past, and it imposed, as a condition of the supervised release,

requirements that Bautista-Villanueva “cooperat[e] with ICE

officials” and, if deported, that he “not reenter the United

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States without express permission of the Attorney General, or

his/her designated representative.” Given Bautista-Villanueva’s

history of illegal reentry, the district court’s imposition of

supervised release was reasonable.

I would affirm.

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