18‐1367‐cr
United States of America v. Martinez‐Perez
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 23rd day of April, two thousand nineteen.
PRESENT: RICHARD C. WESLEY,
DENNY CHIN,
Circuit Judges,
LEWIS A. KAPLAN,
District Judge.*
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UNITED STATES OF AMERICA,
Appellee,
v. 18‐1367‐cr
BAYRON HEBERTO MARTINEZ‐PEREZ, AKA
BAYRON HERBERTO MARTINEZ‐PEREZ,
Defendant‐Appellant.
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* Judge Lewis A. Kaplan of the Southern District of New York, sitting by designation.
FOR APPELLEE: Paul D. Silver, Assistant United States
Attorney, for Grant C. Jaquith, United States
Attorney for the Northern District of New
York, Albany, New York.
FOR DEFENDANT‐APPELLANT: James P. Egan and Melissa A. Tuohey,
Assistant Federal Public Defenders, for Lisa A.
Peebles, Federal Public Defender, Syracuse,
New York.
Appeal from the United States District Court for the Northern District of
New York (Suddaby, C. J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Defendant‐appellant Bayron Heberto Martinez‐Perez appeals from a
judgment of conviction, entered April 30, 2018, following his guilty plea to one count of
illegal re‐entry of a removed alien, in violation of 8 U.S.C. § 1326(a). Martinez‐Perez
waived the formal presentence report procedure, and the government did not object.
The district court proceeded to sentence Martinez‐Perez immediately following his
guilty plea, imposing a sentence of five monthsʹ imprisonment and one yearʹs
supervised release. On appeal, Martinez‐Perez challenges the district courtʹs imposition
of the one‐year term of supervised release as procedurally unreasonable. We assume
the partiesʹ familiarity with the underlying facts, procedural history, and issues on
appeal.
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I. Standard of Review
Martinez‐Perez did not object to the imposition of the term of supervised
release during his sentencing. Where a defendant did not object to the reasonableness
of his sentence before the district court, we review the district courtʹs decision for plain
error. United States v. Verkhoglyad, 516 F.3d 122, 128 (2d Cir. 2008); United States v.
Villafuerte, 502 F.3d 204, 207 (2d Cir. 2007). ʺTo establish plain error, the defendant must
establish (1) error (2) that is plain and (3) affects substantial rights.ʺ Villafuerte, 502 F.3d
at 209.
II. Applicable Law
A sentence is procedurally unreasonable if the district court fails to
calculate the Guidelines range, mistakenly calculates the Guidelines range, fails to
consider the § 3553(a) factors, or bases the sentence on clearly erroneous factual
findings. United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). Under the
Guidelines, a ʺcourt 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.ʺ U.S.S.G. § 5D1.1(c). A court
may, however, impose a period of supervised release for a defendant convicted of
illegal re‐entry ʺif the district court finds that supervised release would provide an
added measure of deterrence and protection based on the facts and circumstances of a
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particular case.ʺ United States v. Alvarado, 720 F.3d 153, 155 (2d Cir. 2013) (per curiam)
(internal quotation marks omitted); accord U.S.S.G. 5D1.1 cmt. n.5.
III. Application
Martinez‐Perez contends that his sentence was procedurally unreasonable
in two respects: (1) the district court failed to consider the statutory factors along with
the Guidelines; and (2) the district court failed to explain why it was deviating from
Section 5D1.1(c) of the Guidelines. Both arguments fail.
First, Martinez‐Perezʹs argument that the district court procedurally erred
because it failed to consider the § 3553(a) factors together with the Guidelines is without
merit. Although the district court agreed ʺto proceed with sentencing . . . without the
benefit of a Presentence Report,ʺ it also noted that it had sufficient information ʺto
enable the meaningful exercise of [its] sentencing authority pursuant to [§ 3553(a)].ʺ
Appʹx at 41. The district court considered the Information, the Pretrial Services Report,
and other documents, including counselsʹ submissions; correctly calculated the
Guidelines range; and then stated the following:
The Court notes that this will be the third time that this
defendant will be removed from this country; the first time
voluntarily, the second time by court order or by
immigration order . . . . Certainly, he has been slow to get the
message that he must not enter this country illegally,
regardless of his intentions to work to provide money for
family. He needs to understand that he is violating the laws
of this country and he needs to understand that this
behavior is costing the . . . United States a considerable
expense as a result of his illegal conduct.
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Id. at 41‐42. In imposing the one‐year term of supervised release, the district court
specifically noted that it was ʺvery certainʺ that Martinez‐Perez would be deported and
barred from returning to this country, but explained that it was imposing supervised
release ʺif for some reasonʺ Martinez‐Perez was given permission to re‐enter, in which
event he was required to report to the Probation Department. Id. at 42‐43.
On this record, including the fact that Martinez‐Perez had illegally entered
the country two prior times, it is evident that the district court considered the statutory
factors and the Guidelines and determined a term of supervised release would provide
an additional measure of deterrence and protection. See U.S.S.G. 5D1.1 cmt. n.5 (ʺThe
court should . . . 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.ʺ); Alvarado, 720 F.3d at 155,
158. Therefore, the district court properly considered the statutory factors and
determined that the one‐year term of supervised release was warranted.
Second, Martinez‐Perez argues that the district court did not explain why
it was deviating from the Guidelines because it did not distinguish its reasoning for
imposing five monthsʹ imprisonment from its imposition of supervised release. That
argument is unpersuasive. In Alvarado, we concluded that ʺ[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.ʺ 720 F.3d at 158. We upheld the district courtʹs
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imposition of supervised release based on an illegal re‐entry conviction even though
ʺthe District Court did not specifically state that supervised release (as opposed to
[defendantʹs] sentence generally) was designed to provide an additional measure of
deterrence.ʺ Id. at 159. Moreover, the district courtʹs reasoning is apparent from its
comments discussed above. Thus, Martinez‐Perezʹs challenge to the procedural
reasonableness of the sentence on the ground that the district court failed to explain the
need for supervised release is unconvincing.
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We have considered Martinez‐Perezʹs remaining arguments and find them
to be without merit. Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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