United States v. Gerson Aplicano-Oyuela

                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4244


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

GERSON ARTURO APLICANO-OYUELA, a/k/a Hershen Arturo Oulala,
a/k/a Jose Roberto Ordonez, a/k/a Franklin Maradiaga Ortiz,
a/k/a Herzan Aplicano, a/k/a Jefferson Alexander Ordonez,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:13-cr-00444-PJM-1)


Argued:   March 26, 2015                   Decided:   July 7, 2015


Before NIEMEYER, KING, and HARRIS, Circuit Judges.


Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Niemeyer and Judge Harris joined.


ARGUED: Julie L.B. Johnson, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant.    Nicholas Jacob
Patterson, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee.   ON BRIEF: James Wyda, Federal Public
Defender, Baltimore, Maryland, Matthew McNicoll, Law Clerk,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for
Appellant.     Rod  J.  Rosenstein,   United  States   Attorney,
Baltimore, Maryland, Kelly O’Connell Hayes, Assistant United
States   Attorney,  OFFICE   OF  THE   UNITED   STATES   ATTORNEY,
Greenbelt, Maryland, for Appellee.




                               2
KING, Circuit Judge:

       Gerson   Arturo    Aplicano-Oyuela             (“Aplicano”),     a   native     and

citizen of Honduras, pleaded guilty in the District of Maryland

to an illegal reentry offense that occurred after his removal

from this country following a felony conviction.                         See 8 U.S.C.

§ 1326(a),      (b)(1).        On   March       13,    2014,    the    district       court

sentenced Aplicano to sixteen months in prison and three years

of supervised release.              On appeal, Aplicano challenges solely

his    term     of   supervised       release,         contending       that     it    was

procedurally and substantively unreasonable, and that the court

failed to properly advise him with respect to supervised release

before    accepting      his   guilty     plea.          As    explained    below,      we

affirm.



                                          I.

                                          A.

       In 2002, at the age of nineteen, Aplicano illegally entered

the    United   States    from      Honduras.          In     August   2006,     Aplicano

pleaded guilty to second-degree assault in Maryland using the

name    “Hershen     Arturo    Oulala.”          Two    years    later,     he   pleaded

guilty in Maryland to driving without a license, this time using

the alias “Gerson E. Aplicano.”                 In 2011, Aplicano was convicted

of criminal mischief in Ohio under the name “Jefferson Ordonez.”

That November, Aplicano was released from state confinement into

                                            3
the custody of the Department of Homeland Security’s Immigration

and Customs Enforcement (“ICE”).                      In late 2011, Aplicano was

removed to Honduras.

        Almost immediately after his removal, Aplicano unlawfully

reentered    the   United     States.            He   was     apprehended       by    border

patrol    agents     in    McAllen,       Texas,       however,        and    removed    to

Honduras in January 2012.                 Sometime between January 2012 and

March 2013, Aplicano again entered the United States without

authorization.        In    March    and    May       2013,    he     was    arrested    for

separate offenses in Maryland — on both occasions using the

alias “Frankin J. Maradiaga-Ortiz.”                   Although those charges were

later     dismissed,       Aplicano’s       brushes          with     law     enforcement

continued.      In    late    May    2013,       he    was     arrested       for    another

second-degree assault in Maryland.                    Following Aplicano’s guilty

plea on the assault charge in July of that year — under the

fictitious name “Jose Roberto Ordonez” — ICE again took custody

of   Aplicano   and       obtained    his       fingerprints.           ICE    determined

Aplicano’s    true     identity      by    comparing          those    fingerprints       to

fingerprint records in its database.

                                            B.

        By its indictment of August 26, 2013, the federal grand

jury in Maryland charged Aplicano with illegal reentry by an

alien who had previously been removed after a felony conviction,

in contravention of 8 U.S.C. § 1326(a) and (b)(1).                                  Aplicano

                                            4
initially pleaded not guilty to the indictment.                          On November 22,

2013, however, Aplicano submitted a letter (the “plea letter”)

through          his   attorney    to   the   district      court,       explaining   that

(1) he “knowingly and voluntarily agreed to plead guilty” to the

single charge in the pending indictment “without the benefit of

a plea agreement”; and (2) the plea letter would “assist the

Court in the Rule 11 colloquy.”                    J.A. 9. 1    Aplicano acknowledged

that       the    “maximum   sentence”        for    the    illegal      reentry   offense

includes “a period of supervised release of three (3) years.”

Id.    at        10.     According      to    the    plea      letter,    Aplicano    also

understood that

       if he serves a term of imprisonment, is released on
       supervised release, and then violates the conditions
       of his supervised release, his supervised release
       could be revoked — even on the last day of the term —
       and [he] could be returned to custody to serve another
       period of incarceration and a new term of supervised
       release.

Id.        Aplicano signed and dated the plea letter, acknowledging

therein that “I have carefully discussed this letter with my

attorney.          I understand it, and I voluntarily agree to it.”                     Id.

at 13.

       The       district    court      conducted     Aplicano’s      plea    hearing    on

December 11, 2013.                Consistent with the plea letter, Aplicano


       1
       Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.



                                               5
pleaded guilty to the illegal reentry charge in the indictment.

Accepting Aplicano’s guilty plea, the court observed that there

was no plea agreement.                The court acknowledged receipt of the

plea letter, however, and confirmed that Aplicano had reviewed

it with an interpreter.                It advised Aplicano that, by pleading

guilty, he would be subject to the “maximum possible penalty”

for his offense, including “supervised release for a period of

three years.”          J.A. 23.       Aplicano indicated that he understood,

and his attorney agreed that the court could impose a sentence

“within its discretion.”              Id. at 26.

     On     February         4,     2014,     the    probation       officer     presented

Aplicano’s presentence report (the “PSR”) to the district court.

According    to       the    PSR,    Aplicano’s       base    offense    level    for    the

illegal reentry offense was level 8, pursuant to the Sentencing

Guidelines, but it was increased by four levels as a result of

his 2006 felony assault conviction in Maryland.                            See U.S.S.G.

§ 2L1.2(b)(1)(D)            (2012).         Aplicano’s       offense    level    was    then

reduced     by        two    levels     for        acceptance     of    responsibility,

resulting in a total offense level of 10.                         The PSR identified

the applicable Guidelines range as ten to sixteen months, and

recommended       a    within-Guidelines            sentence    of     thirteen   months.

The PSR also indicated that the court was entitled to impose a

term of supervised release, in accordance with the following

provisions:

                                               6
       Statutory Provisions:  If a term of imprisonment is
       imposed, the Court may impose a term of supervised
       release of not more than three years, pursuant to 18
       U.S.C. § 3583(b)(2).

       Guidelines Provisions:   Supervised release is required
       if the Court imposes a term of imprisonment of more
       than one year or when required by statute, pursuant to
       U.S.S.G. § 5D1.1(a). If a sentence of imprisonment of
       one year or less is imposed, a term of supervised
       release is not required but is optional, pursuant to
       U.S.S.G. § 5D1.1(b). The guideline range for a term of
       supervised release is at least one year but not more
       than three years for a defendant convicted of a Class C
       felony, pursuant to U.S.S.G. § 5D1.2(a)(2).    However,
       pursuant to U.S.S.G. § 5D1.1(c), the 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.

J.A.    79    (emphasis   added).      Invoking    Aplicano’s   two   previous

assault convictions, the PSR recommended that the court impose a

two-year term of supervised release, in consideration of the

“safety of the community.”          Id. at 85.

       On February 28, 2014, Aplicano submitted a second letter to

the district court (the “sentencing letter”), acknowledging that

he did not dispute the PSR’s calculation of his total offense

level    as    10.    Aplicano      urged   the   court,   however,   to   vary

downward from the Guidelines range of ten to sixteen months, and

specifically sought an eight-month sentence in consideration of

the sentencing factors set forth in 18 U.S.C. § 3553(a).                   The

sentencing letter did not address the PSR’s recommendation of




                                        7
supervised release, and Aplicano never sought to withdraw his

guilty plea.

                                         C.

       On March 13, 2014, the district court conducted Aplicano’s

sentencing      hearing.       Neither        the   prosecution         nor    Aplicano

objected to the PSR, and the court adopted “the factual findings

and advisory guideline application in the [PSR] without change.”

J.A.   36-37.      The     government    then       argued    for   a    sentence     of

sixteen months in prison, reminding the court that Aplicano had

illegally entered the United States three times, “[t]wice after

having been convicted of a crime and thereafter deported.”                           Id.

at   37.     Aplicano    urged   the     court      to   consider    his      “personal

history and characteristics,” and to impose “a sentence of eight

months or in the range of eight to ten months.”                           Id. at 41.

Aplicano     maintained      that   an       eight-      to   ten-month       term    of

imprisonment     would     permit   him       to    apply     for   withholding       of

removal based on his family’s status in Honduras.                       Specifically,

he explained that his family had been targeted by a Honduran

gang that had “executed his aunt, attempted to kill his cousin,”

and forced other family members into hiding.                        Id.       Aplicano

suggested that a gunshot wound to his leg in 2011 — occurring




                                         8
shortly after his first removal to Honduras — was the result of

a Honduran gang attack. 2

     In fashioning the sentence, the district court focused on

Aplicano’s multiple illegal entries into the United States and

predicted that he would unlawfully return to this country post-

removal.      Observing    Aplicano’s    propensity     to    commit   crimes

following his illegal entries, the court further questioned why

Aplicano’s    criminal    history   should   “somehow    be    minimized   in

order to accommodate his desire to stay” in the United States.

See J.A. 49.      The court provided the following observations in

that regard:

     •       “We forget the crimes, when we talk about it, we
             forget the fact that he ignores the law and comes
             back.” Id. at 46.

     •       “I see he’s used aliases four times when he’s
             been in court. . . . How is this man in any way
             law abiding?   How can I believe for a moment
             anything he says about his future intention?”
             Id.

     •       “His real problem is he comes to this country
             illegally and commits crimes.  That’s what we’re
             talking about. . . .   He’s broken our law again
             and again.” Id. at 46-47.



     2  Aplicano represented to the sentencing court that a
nonprofit organization had agreed to help him apply for
immigration relief.   He suggested that, if the court imposed a
sentence greater than ten months, the Bureau of Prisons would
relocate him to another detention facility and thereby cause him
to lose the assistance of the nonprofit organization.



                                     9
      •        “[T]his is a man who is really not very                       law-
               abiding when he gets here.” Id. at 48.

      •        “[Y]ou violated the law twice just coming into
               the country unlawfully. While you were here, you
               committed   crimes,   assaults,  hurting   other
               people.” Id. at 51.

      •        “[I]t’s bad to come in unlawfully.    It’s bad to
               commit crimes while you’re here.   The courts are
               not going to stand for it.” Id. at 53.

      •        “I have no reason to believe you won’t do this
               again.    You [have] done it twice already.
               There’s just no reason to believe you. . . .
               You’ll find a reason to get back here again.”
               Id.

      Although the district court evaluated the § 3553(a) factors

to   determine       whether     Aplicano       “merits    some    sort    of    special

solicitude,” see J.A. 51, it doubted the veracity of Aplicano’s

account of his life in Honduras, observing that other defendants

facing sentences under § 1326 have offered “the same story” as

Aplicano,      see   id.    at   52.    In       light    of    Aplicano’s       criminal

history, the court resolved to “opt in favor of protecting the

people that are [in the United States] rather than” rule in

favor     of   protecting      Aplicano.        Id.       The   court     then    advised

Aplicano that

      I’m going to fashion a sentence so that if you
      [illegally reenter the United States], it will be easy
      to incarcerate you for a very long time. . . .     You
      deserve punishment.   That’s not the main thing.   You
      certainly need to be deterred, because [it] looks to
      me like you’re going to try this again. No reason not
      to.    And if you do, it should be easy for the
      government to come back to court and easy to get a
      longer sentence as well.
                                           10
Id. at 53-54.

     By    its    criminal        judgment,         the    district       court    sentenced

Aplicano    to    sixteen         months       in    prison     and      three     years    of

supervised release. 3          Acknowledging that the probation officer

had “some concerns with” imposing supervised release, the court

stated     that     supervised       release          was     appropriate          “for    the

following reason:         That I think [Aplicano] may well try to get

back in the country again.”                J.A. 54.         The court instructed the

probation    officer      that,      if    Aplicano         illegally       reentered      the

United    States,    “I     want    you    to       obviously      file    a    petition    to

revoke [his supervised release] and we’ll get him in jail much

faster than if we went through a separate prosecution.”                                    Id.

Then,     speaking     directly           to    Aplicano,          the     court     warned,

“[U]nderstand,       sir,    that     you      will       [then]    face       substantially

longer jail time.”          Id.     Notably, Aplicano did not object to the

term of supervised release when it was imposed by the court.

     Now, however, Aplicano challenges his three-year term of

supervised release on the grounds that it is procedurally and

     3  According to the criminal judgment, Aplicano, as a
condition of supervised release, must “be surrendered to a duly
authorized immigration official for deportation in accordance
with established procedures provided by the Immigration and
Naturalization Act.   If ordered deported, [Aplicano] shall not
reenter the United States without express permission of the
Attorney General, or his/her designated representative.”   J.A.
67.



                                               11
substantively unreasonable, and that his guilty plea was fatally

flawed.       He     timely   noticed      this      appeal,     and    we       possess

jurisdiction       pursuant   to   18     U.S.C.     § 3742(a)    and       28   U.S.C.

§ 1291.



                                         II.

      When a criminal defendant presents a sentencing issue that

was not properly preserved in the district court, we review the

issue for plain error only.              See United States v. Hargrove, 625

F.3d 170, 184 (4th Cir. 2010) (applying plain error review to

substantive challenges); United States v. Lynn, 592 F.3d 572,

577 (4th Cir. 2010) (applying plain error review to procedural

challenges).        Similarly, when a defendant contests the validity

of a guilty plea that he did not seek to withdraw, we also

review that challenge solely for plain error.                  See United States

v. Martinez, 277 F.3d 517, 524, 527 (4th Cir. 2002).                        To satisfy

plain     error     review,   the        defendant     must      establish         that:

(1) there is a sentencing error; (2) the error is plain; and

(3) the error affects his substantial rights.                  See United States

v. Olano, 507 U.S. 725, 731-32 (1993).                 If the three-part plain

error test is satisfied, we must decide whether to cure the

error, “and should not do so unless the error ‘seriously affects

the     fairness,     integrity     or    public      reputation       of     judicial



                                          12
proceedings.’”        Hargrove, 625 F.3d at 184 (quoting Olano, 507

U.S. at 736).



                                         III.

     In this appeal, Aplicano first contends that his three-year

term of supervised release is procedurally unreasonable because

the district court failed to specify appropriate reasons for its

imposition.     Second, Aplicano argues that the term of supervised

release is substantively unreasonable because the court relied

on   a    mistaken    premise     —      namely,         that     Aplicano   would    be

imprisoned faster if again caught illegally entering the United

States.     Finally, Aplicano asserts that his guilty plea was not

knowingly and voluntarily entered because the court failed to

advise him of the nature and consequences of supervised release.

                                             A.

     Before assessing the merits of Aplicano’s contentions, we

briefly    review     the   supervised         release      system,    including     its

impact on aliens facing post-incarceration removal.                          Supervised

release is the successor to parole, which was largely eliminated

by the Sentencing Reform Act of 1984.                        See United States v.

Buchanan,     638    F.3d      448,     451       (4th    Cir.    2011).       Notably,

“[s]upervised        release     is      not       a     punishment     in    lieu   of

incarceration”;       rather,     “it        is    a     unique    method    of   post-

confinement     supervision           that     fulfills         rehabilitative    ends,

                                             13
distinct from those served by incarceration.”                               Id. (internal

quotation marks omitted).                Supervised release is mandatory if

required     by     statute.         See       18     U.S.C.       § 3583(a);       U.S.S.G.

§ 5D1.1(a)(1).        It is also mandatory if a defendant is sentenced

to a term of imprisonment exceeding one year, with the single

exception     discussed       below.       See        U.S.S.G.     § 5D1.1(a)(2),         (c).

Otherwise, a sentencing court may exercise discretion to impose

supervised     release.            See    18        U.S.C.   § 3583(a).             In    each

situation, a court must consider the following § 3553(a) factors

before     imposing        supervised      release:               (1) the       nature     and

circumstances of the offense; (2) the defendant’s history and

characteristics; (3) the need to deter criminal conduct; (4) the

need to protect the community from future crimes; and (5) the

pertinent policy statements issued by the Sentencing Commission.

See id. § 3583(c).

      In    2011,    the    Sentencing         Guidelines         were    amended    to    add

section 5D1.1(c), which contains the exception to the general

supervised release rules.                Section 5D1.1(c) provides that, if

supervised release is not required by statute and the defendant

is   an    alien    facing    post-incarceration             removal,       a    sentencing

“court     ordinarily       should       not    impose       a    term     of    supervised

release.”          U.S.S.G.    § 5D1.1(c).              Rather,      if    the    defendant

illegally     reenters       the   United           States   in    contravention         of   a

condition of supervised release, “the need to afford adequate

                                               14
deterrence    and   protect       the   public      ordinarily     is    adequately

served   by    a    new    prosecution.”              Id.   § 5D1.1      cmt.     n.5.

Nevertheless, the Guidelines do not foreclose the possibility of

supervised release being imposed on removable aliens.                       Indeed,

if a sentencing court determines that a removable alien requires

“an   added   measure     of    deterrence    and     protection    based    on   the

facts and circumstances of a particular case,” then “[t]he court

should . . . consider imposing a term of supervised release.”

Id.

                                        B.

      We first consider whether the district court’s imposition

of the three-year term of supervised release was procedurally

unreasonable.        Aplicano       contends        that,   because       supervised

release is ordinarily discouraged for removable aliens pursuant

to Guidelines section 5D1.1(c), the court erroneously imposed

supervised    release      by    “fail[ing]      to    adequately       explain   its

justification for deviating from this guideline.”                        See Br. of

Appellant 11; see also Gall v. United States, 552 U.S. 38, 51

(2007) (recognizing as procedural error the sentencing court’s

failure to “adequately explain the chosen sentence — including

an explanation for any deviation from the Guidelines range”).

      We are without published authority on whether imposition of

supervised release on an alien who is likely to be removed is



                                        15
procedurally reasonable. 4            Although we are mindful that such a

post-incarceration condition is “ordinarily” discouraged by the

Guidelines       for    a    removable   alien,       the   term    “ordinarily”       in

section      5D1.1(c)       is   “hortatory,    not    mandatory.”         See   United

States      v.   Dominguez-Alvarado,          695   F.3d.    324,    329    (5th     Cir.

2012).       Moreover, Application Note 5 to section 5D1.1 provides

that a sentencing court “should, however, consider” imposing a

term of supervised release in certain situations.                        Accordingly,

the imposition of “supervised release is appropriate and not a

departure from the . . . Guidelines if the district court finds

that       supervised       release   would    provide      an   added     measure    of

deterrence and protection based on the facts and circumstances

of a particular case.”             United States v. Alvarado, 720 F.3d 153,



       4
       In our nonprecedential unpublished decisions reviewing
imposition of supervised release on aliens who are likely to be
removed post-incarceration, we have generally affirmed.      See
United States v. Jeronimo-Rodas, 583 F. App’x 122, 123 (4th Cir.
2014); United States v. Hosein, 581 F. App’x 199, 200 (4th Cir.
2014); United States v. Xutuc-Lopez, 547 F. App’x 302, 302 (4th
Cir. 2013); United States v. Deleon-Ramirez, 542 F. App’x 241,
247 (4th Cir. 2013); United States v. Cruz, 538 F. App’x 289,
290 (4th Cir. 2013); United States v. Amezquita-Franco, 523 F.
App’x 971, 974 (4th Cir. 2013); United States v. Sanchez-Mendez,
521 F. App’x 142, 144 (4th Cir. 2013); United States v.
Hernandez, 519 F. App’x 820, 823 (4th Cir. 2013); United States
v. Ramirez, 503 F. App’x 226, 227 (4th Cir. 2013); United States
v. Jimenez-Manuel, 494 F. App’x 411, 413 (4th Cir. 2012).    But
see United States v. Bautista-Villanueva, 546 F. App’x 260, 261
(4th Cir. 2013) (remanding for the sentencing court to “perform
an individualized assessment of the propriety of imposing a term
of supervised release”).



                                          16
155 (2d Cir. 2013) (internal quotation marks omitted); see also

Dominguez-Alvarado, 695 F.3d at 329.

      We   are    satisfied       that      the     district       court     appropriately

determined       that    imposing       a    term       of     supervised         release    on

Aplicano     would      provide    an       added    measure         of    deterrence        and

protection for the community.                     At sentencing, the court made

repeated     references      to     its      desire       to    deter       Aplicano        from

illegally    entering      the    United       States        for     a    fourth    time     and

continuing his pattern of committing criminal acts.                                The court

expressed its desire to protect “the people that are here rather

than” protect Aplicano.            See J.A. 52.              The court also explained

that punishing Aplicano was “not the main thing,” suggesting

that Aplicano’s “need to be deterred” was a greater concern.

See id. at 54.          The court then informed Aplicano that it would

impose a term of supervised release “for the following reason:

That I think you may well try to get back in the country again.”

Id.     In    these      circumstances,           the    imposition         of     supervised

release was appropriate under the Guidelines.

      In so ruling, we recognize that the district court failed

to specifically discuss the Guidelines or “state that supervised

release    (as    opposed    to       [Aplicano’s]           sentence      generally)        was

designed to provide an additional measure of deterrence.”                                    See

Alvarado, 720 F.3d at 159.                  Nonetheless, as the Second Circuit

has   determined,        where    a     sentencing           court       (1) is     aware     of

                                             17
Guidelines      section      5D1.1(c);          (2) considers         a     defendant’s

specific      circumstances         and     the        § 3553(a)       factors;        and

(3) determines that additional deterrence is needed, “[n]othing

more [is] required.”              Id.     But see United States v. Solano-

Rosales, 781 F.3d 345, 353 (6th Cir. 2015) (explaining that the

sentencing court erred “in failing to acknowledge the guidelines

recommendation against supervised release embodied in § 5D1.1(c)

or discuss its decision to take a different course of action in

Defendant’s case”).         We agree with the Second Circuit’s analysis

and readily conclude that the three factors it has identified

are present here.

       As for the first factor, the district court was aware of

§ 5D1.1(c)      because      it     adopted      the     PSR       “without       change,”

including the “advisory guideline application.”                            See J.A. 37.

The PSR explained that supervised release is generally required

where    a   term   of    imprisonment      exceeding        one    year    is    imposed,

except that supervised release ordinarily should not be ordered

for a removable alien.              The PSR then recommended a term of

supervised release due to Aplicano’s particular characteristics

— that is, his propensity to commit violent crimes.                              By way of

the PSR, the court was aware of section 5D1.1(c)’s substantive

recommendation against the imposition of supervised release on

removable aliens.           Indeed, the court’s comment at sentencing

that    it   knew   the   probation       officer      had   “some    concerns       with”

                                           18
imposing supervised release plainly referred to the provision of

section       5D1.1(c)      that      courts      “ordinarily”       should      not   order

supervised release for a removable alien.                      See id. at 54.

       With    respect      to     the    second      factor,    the     district       court

considered       Aplicano’s           specific      circumstances      and     the     other

§ 3553(a) factors in fashioning his term of supervised release.

More specifically, the court acknowledged Aplicano’s account of

the violence he and his family had suffered in Honduras, but

questioned       the      genuineness        of     that    story.       See     18    U.S.C.

§ 3553(a)(1).          Observing Aplicano’s history of violent criminal

activities while in the United States, see id., the court opted

to protect the people of this country from further crimes by

Aplicano, see id. § 3553(a)(2)(C).                         The court also determined

that Aplicano’s history of illegal entries justified deterring

him from further unlawful reentries.                   See id. § 3553(a)(2)(B).

       Aplicano argues that the district court’s analysis of the

§ 3553(a) factors was limited to his term of imprisonment, and

thus   did     not     apply     to    his   term     of    supervised    release.         He

suggests that, because the court’s analysis of the § 3553(a)

factors preceded its imposition of a term of imprisonment, the

consideration        of     those      factors       supported    only     the    term    of

imprisonment.           A   court’s       sentencing        rationale,     however,      can

support both imprisonment and supervised release.                              See United

States v. Clark, 726 F.3d 496, 501 (3d Cir. 2013) (“[W]e have

                                               19
never    required        that    a    district      court    conduct          two    § 3553(a)

analyses, one related to the term of imprisonment and a second

related to the term of supervised release.”); United States v.

Presto, 498 F.3d 415, 419 (6th Cir. 2007) (concluding that the

sentencing        court    did       not    commit       procedural       error       when   it

“engaged in a single consideration of the [§ 3553(a)] sentencing

factors, which embraced both the incarceration sentence and the

supervised release term”).

       Finally,      the     district         court       determined          that    Aplicano

required     additional         deterrence,        satisfying       the       third    factor.

The    court’s     statement         to    Aplicano      immediately      after        imposing

supervised release — “I think you may well try to get back in

the country again” — demonstrates that proposition.                                    See id.

Accordingly,         Aplicano’s             challenge         to      the            procedural

reasonableness of his supervised release term fails to survive

the first prong of plain error review, in that there was no

error.

                                              C.

       We next assess the substantive reasonableness of Aplicano’s

term    of   supervised         release.          When    reviewing       a    sentence      for

substantive       reasonableness,            we    must    “take    into        account      the

totality     of    the     circumstances,          including       the    extent        of   any

variance from the Guidelines range.                       If the sentence is within

the    Guidelines        range,      the    appellate       court    may,       but     is   not

                                              20
required to, apply a presumption of reasonableness.”                      Gall, 552

U.S. at 51.         A “defendant can only rebut the presumption by

demonstrating that the sentence is unreasonable when measured

against the § 3553(a) factors.”                United States v. Montes-Pineda,

445   F.3d   375,    379    (4th   Cir.    2006)   (internal      quotation     marks

omitted).     If the district court relies on an improper factor, a

sentence may be substantively unreasonable.                       See id. at 378.

Because we agree that the imposition of supervised release on

Aplicano     was    consistent     with   the     Guidelines,      we   presume   the

substantive reasonableness of Aplicano’s sentence.

      Aplicano’s      challenge     to    his    term   of    supervised      release

hinges on the district court’s remark that, if Aplicano violated

the conditions of supervised release, the authorities could “get

him in jail much faster than if we went through a separate

prosecution.”         See    Br.   of     Appellant     20    (citing    J.A.     54).

Aplicano contends that the court’s premise was flawed, and, as

such,     constitutes       substantive        error.        We   disagree.        Cf.

Morrissey v. Brewer, 408 U.S. 471, 479 (1972) (explaining that a

revocation of parole “is often preferred to a new prosecution

because of the procedural ease of recommitting the individual on

the basis of a lesser showing by the State”).                     Furthermore, the

court’s sentencing rationale was not based on an impermissible

factor.      Indeed, the admonition that Aplicano would be “in jail

much faster” is yet another indication of the court’s intention

                                          21
to provide deterrence and protection for the community.                         See 18

U.S.C. § 3553(a)(2)(B), (C).             In these circumstances, Aplicano’s

sentence was substantively reasonable.                   Because there was no

error in this respect, this claim also fails the first prong of

plain error review.

                                         D.

      Finally, we assess whether the district court “failed to

sufficiently explain the nature and consequences of supervised

release,” in contravention of Rule 11 of the Federal Rules of

Criminal Procedure.       See Br. of Appellant 22.              Aplicano urges us

to either set aside his guilty plea or direct the district court

to resentence him without a term of supervised release.

      Rule    11(b)(1)(H)        provides,      in      pertinent       part,     that

“[b]efore the court accepts a plea of guilty [it] must inform

the    defendant      of,       and      determine       that     the     defendant

understands, . . .        any    maximum      possible     penalty,       including

imprisonment, fine, and term of supervised release.”                        We have

further determined that Rule 11 requires a district court “to

personally     inform     the    defendant        of,    and    ensure     that     he

understands,    the     nature    of   the    charges     against   him    and     the

consequences of his guilty plea.”                 United States v. Hairston,

522   F.3d   336,   340   (4th    Cir.    2008)    (internal     quotation       marks

omitted).



                                         22
      During     the   plea     hearing,      the      district       court        advised

Aplicano     that    “the   maximum      possible          penalty    in     this      case

[includes]     supervised      release   for     a    period     of       three    years.”

J.A. 23.       Aplicano indicated to the court that he understood.

Furthermore, Aplicano acknowledged that he had reviewed the plea

letter — provided by him to “assist the Court in the Rule 11

colloquy” — with his interpreter.                    See id. at 9.                The plea

letter, signed and dated by Aplicano, stated that if Aplicano

violated   his      supervised    release,       he    “could        be    returned      to

custody to serve another period of incarceration and a new term

of supervised release.”           Id. at 10.               When questioned by the

court late in the plea hearing about whether he understood the

proceedings, Aplicano responded, “I understand everything.”                             Id.

at 31.

      Aplicano now argues that, despite his understanding of the

consequences of supervised release — which he acknowledged in

the plea letter — the court inadequately advised him on the

subject of supervised release at the plea hearing.                           Relying on

our decision in United States v. Thorne, 153 F.3d 130 (4th Cir.

1998), Aplicano contends that the plea letter did “not supplant

the district court’s obligations” to orally explain the nature

of   supervised     release.      See    Reply       Br.    of   Appellant        6.     In

Thorne, we determined that the sentencing court erred by failing

to properly inform the defendant of the nature of supervised

                                         23
release, even though the written plea agreement specified that

the defendant was subject to a term of supervised release.                    See

153 F.3d at 133.

     Even if the sentencing court erred in that regard and such

error was plain — satisfying the first two prongs of plain error

review   —   a   vacatur   of   Aplicano’s      guilty   plea   would   not   be

warranted    because   Aplicano    has    not   shown    that   such   an   error

affected his substantial rights.             See United States v. Olano,

507 U.S. 725, 734 (1993).           That is, Aplicano has not shown a

“‘reasonable probability that, but for the error, [he] would not

have entered the plea.’”          See United States v. Sanya, 774 F.3d

812, 817 (4th Cir. 2014) (quoting United States v. Dominguez

Benitez, 542 U.S. 74, 83 (2004)).               Importantly, Aplicano does

not point to anything in the record suggesting that he would not

have pleaded guilty absent the court’s failure to advise him of

the nature and consequences of supervised release.

     Indeed, the fact that Aplicano made no effort to withdraw

his guilty plea after the district court imposed the term of

supervised release is compelling “evidence that he would have

entered the plea regardless.”            See United States v. Massenburg,

564 F.3d 337, 344 (4th Cir. 2009).           And there is no dispute that

the prosecution’s case against Aplicano was strong.                     See id.

Accordingly, the record fails to show a “reasonable probability”

that Aplicano would have refrained from pleading guilty but for

                                     24
the assumed Rule 11 error, and Aplicano is unable to satisfy the

third prong of the plain error analysis.   See id. at 343.   Thus,

this appellate contention also fails.



                               IV.

     Pursuant to the foregoing, we affirm the judgment of the

district court.

                                                         AFFIRMED




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