UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4749
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE ADOLFO BENITEZ ALVARADO,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:13-cr-00696-JFM-1)
Submitted: May 19, 2016 Decided: June 21, 2016
Before THACKER and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Meghan Skelton, Greenbelt,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Zachary A. Myers, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Adolfo Benitez Alvarado (Benitez Alvarado) pled guilty
to illegal reentry of a removed alien, in violation of 8 U.S.C.
§ 1326(a), (b)(2) (2012). On appeal, Benitez Alvarado claimed
that the district court procedurally erred when it sentenced him
to a three-year term of supervised release without a proper
explanation. We vacated the term of supervised release and
remanded for resentencing, expressing no opinion as to the
propriety of supervised release. United States v. Benitez
Alvarado, 622 F. App’x 215 (4th Cir. 2015) (No. 14-4784). At
resentencing, the court imposed the same three-year term of
supervised release. Benitez Alvarado appeals, arguing that the
imposition of supervised release is both procedurally and
substantively unreasonable. We disagree and affirm the district
court’s amended judgment.
Under U.S. Sentencing Guidelines Manual § 5D1.1(c) (2013),
if supervised release is not required by statute and the
defendant is an alien facing post-incarceration removal, as is
Benitez Alvarado, a sentencing court “ordinarily should not
impose a term of supervised release.” If the alien were to
return illegally, deterrence and the need to protect the public
are “adequately served by a new prosecution.” § 5D1.1 cmt. n.5.
“The court should, however, consider imposing a term of
supervised release on such a defendant if the court determines
2
it would provide an added measure of deterrence and protection
based on the facts and circumstances of a particular case.” Id.
The Guidelines “do not foreclose the possibility of supervised
release being imposed on removable aliens.” United States v.
Aplicano-Oyuela, 792 F.3d 416, 423 (4th Cir. 2015). If the
sentencing court “(1) is aware of Guidelines section 5D1.1(c);
(2) considers a defendant’s specific circumstances and the [18
U.S.C.] § 3553(a) [(2012)] factors; and (3) determines that
additional deterrence is needed, nothing more is required.” Id.
at 424 (internal quotation marks and alteration omitted).
“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 required to, apply a presumption of
reasonableness.’” Id. at 425 (quoting Gall v. United States,
552 U.S. 38, 51 (2007)). “A defendant can only rebut the
presumption by demonstrating that the sentence is unreasonable
when measured against the § 3553(a) factors.” Id. (internal
quotation marks omitted).
Because Benitez Alvarado properly preserved the issue of
whether the explanation was adequate, we review the imposition
of supervised release for abuse of discretion. United States v.
Lynn, 592 F.3d 572, 576 (4th Cir. 2010). Upon our review of the
3
record, we conclude that the district court’s imposition of a
three-year term of supervised release is both procedurally and
substantively reasonable and not an abuse of discretion. The
court was aware of USSG § 5D1.1(c), it considered Benitez
Alvarado’s specific circumstances and the § 3553(a) factors, and
it determined that additional deterrence is needed. See
Aplicano-Oyuela, 792 F.3d at 424.
Accordingly, we affirm the district court’s amended
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
4