Case: 13-40971 Document: 00512722257 Page: 1 Date Filed: 08/05/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
August 5, 2014
No. 13-40971 Lyle W. Cayce
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE MOLINA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:13-CR-19-2
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Defendant-Appellant, Jose Molina, a deportable alien, appeals the term
of supervised release imposed following his guilty plea conviction for
conspiracy to commit hostage-taking in violation of 18 U.S.C. § 1203. He
argues that the supervised release term is procedurally unreasonable because
it was imposed without explanation and notwithstanding U.S.S.G. § 5D1.1(c)’s
advice that supervised release ordinarily should not be imposed on deportable
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40971
aliens. Molina also argues that the supervised release term is substantively
unreasonable because the district court did not account for a factor that should
have received significant weight, namely, § 5D1.1(c)’s advice that deportable
aliens ordinarily should not be sentenced to terms of supervised release.
Although Molina acknowledges that we apply plain error review when a
defendant fails to object to the procedural or substantive reasonableness of the
sentence imposed by the district court, he seeks to preserve for further review
his contention that an objection is not required to preserve a claim of
substantive unreasonableness. Plain error review applies because Molina did
not object to the procedural or substantive reasonableness of his sentence in
the district court. See United States v. Dominguez-Alvarado, 695 F.3d 324,
327-28 (5th Cir. 2012); United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir.
2007).
The district court has discretion to impose supervised release in cases
involving a deportable alien if added deterrence and protection are needed. See
Dominguez-Alvarado, 695 F.3d at 329. Here, the district court adopted the
presentence report, which informed the court of the recommendation contained
in § 5D1.1(c). At sentencing, the district court stated that it considered the 18
U.S.C. § 3553(a) factors and that they would be satisfied by a within-guidelines
sentence. The court’s implicit consideration of § 5D1.1(c), its consideration of
the sentencing factors in § 3553(a), and its express finding that a guidelines
sentence was appropriate satisfy the requirement that the district court
provide reasons for the sentence imposed. See United States v. Becerril-Pena,
714 F.3d 347, 350-51 (5th Cir. 2013); Dominguez-Alvarado, 695 F.3d at 329-30.
Moreover, there is no indication that, if it had been required to give reasons,
the court would have concluded that a term of supervised release was
warranted. See United States v. Cancino-Trinidad, 710 F.3d 601, 607 (5th Cir.
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No. 13-40971
2013). Molina has not shown that the district court plainly erred, even if its
explanation for imposing supervised release were to be deemed inadequate.
See Puckett v. United States, 556 U.S. 129, 135 (2009); Cancino-Trinidad, 710
F.3d at 607 & n.11.
Molina’s three-year term of supervised release is within the guidelines
range for his offense of conviction. It is thus presumptively reasonable, and we
“will infer that the judge has considered all the factors for a fair sentence set
forth in the Guidelines.” United States v. Mares, 402 F.3d 511, 519 (5th Cir.
2005). The record reflects that the district court implicitly considered
§ 5D1.1(c)’s recommendation that deportable aliens should ordinarily not be
sentenced to supervised release, as well as Molina’s history and
characteristics, before imposing the within-guidelines term of supervised
release. Molina’s arguments are insufficient to rebut the presumption of
reasonableness. See Cancino-Trinidad, 710 F.3d at 607-08; United States v.
Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). He has therefore failed
to demonstrate, under plain error review, that the supervised release term is
substantively unreasonable. See Puckett, 556 U.S. at 135; Cancino-Trinidad,
710 F.3d at 607-08.
AFFIRMED.
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