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

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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

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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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