Case: 21-50789 Document: 00516427616 Page: 1 Date Filed: 08/10/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 10, 2022
No. 21-50789 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Oscar Ivan Castro-Delgado,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 4:21-CR-144-1
Before Smith, Clement, and Haynes, Circuit Judges.
Per Curiam:*
In 2021, Oscar Castro-Delgado pleaded guilty of illegally reentering
the United States in violation of 8 U.S.C. § 1326. The district court sen-
tenced him to 30 months’ imprisonment and three years’ supervised release.
Castro-Delgado appeals, advancing two challenges to his sentence.
He didn’t raise either of them before the district court, so our review is for
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited circum-
stances set forth in 5th Circuit Rule 47.5.4.
Case: 21-50789 Document: 00516427616 Page: 2 Date Filed: 08/10/2022
No. 21-50789
plain error. See United States v. Zarco-Beiza, 24 F.4th 477, 481 (5th Cir. 2022).
That requires him to show “(1) the district court committed error, (2) the er-
ror was plain or obvious, (3) the error affected his substantial rights, and
(4) the error seriously affected the fairness, integrity or public reputation of
judicial proceedings.” Id. at 482 (alteration adopted and quotation omitted).
First, Castro-Delgado claims that the district court’s application of the
recidivism enhancement in § 1326(b) is unconstitutional. He acknowledges
that that claim is foreclosed by Almendarez-Torres v. United States, 523 U.S.
224 (1998); he mentions it only to preserve it for further review.
Second, Castro-Delgado says the court erred by sentencing him to a
term of supervised release. Castro-Delgado is an illegal alien who is likely to
be deported after he serves his prison term, and § 1326 does not require him
to be sentenced to a term of supervised release. Section 5D1.1(c) of the Sen-
tencing Guidelines states that such persons “ordinarily” should not be sen-
tenced to a term of supervised release. Even so, a district court has the dis-
cretion to impose supervised release when it “would provide an added meas-
ure of deterrence and protection” and is justified “based on the facts and cir-
cumstances of a particular case.” United States v. Dominguez-Alvarado,
695 F.3d 324, 329 (5th Cir. 2012).
Castro-Delgado maintains that the district court erred procedurally by
failing to acknowledge Section 5D1.1(c) or to offer a particularized explana-
tion for its decision to impose supervised release. See United States v. Can-
cino-Trinidad, 710 F.3d 601, 606 (5th Cir. 2013). Before sentencing him, the
court stated only that it had considered the § 3553(a) factors and that the
Guidelines-recommended sentence was “fair and reasonable.”
But this court has been “skeptical of requests to second-guess district
courts’ decisions to impose terms of supervised release . . . even where the
court committed plain error by ruling contrary to § 5D1.1(c).” United States
2
Case: 21-50789 Document: 00516427616 Page: 3 Date Filed: 08/10/2022
No. 21-50789
v. Becerril-Pena, 714 F.3d 347, 350 (5th Cir. 2013). And even if the district
court committed an obvious error, Castro-Delgado can’t show that it im-
pacted his substantial rights.
Several factors indicate that the court likely would have sentenced
Castro-Delgado to the same term of supervised release even if it had fulfilled
its procedural obligations. Castro-Delgado has two felony convictions for
transporting illegal aliens and has been deported twice already. 1 The district
court explicitly stated that it had considered the § 3553(a) factors—including
deterrence and protection—when it sentenced him. 2 And the court sen-
tenced Castro-Delgado to the top of the Guidelines range for his terms of im-
prisonment and supervised release. 3 So there’s no reasonable probability that
the court would have declined to sentence him to supervised release if it had
considered Section 5D1.1(c). Castro-Delgado has not shown plain error.
Castro-Delgado also maintains that the district court substantively
erred by sentencing him to a term of supervised release. But the sentence fell
within the Guidelines range and therefore is entitled to a presumption of rea-
sonableness despite the district court’s failure to acknowledge Sec-
tion 5D1.1(c). See Cancino-Trinidad, 710 F.3d at 605, 607–08; Dominguez-Al-
varado, 695 F.3d at 329. Especially on plain-error review, Castro-Delgado
cannot overcome that presumption by merely observing that his two prior
convictions occurred several years ago, that he has family ties to Mexico, and
1
See Becerril-Pena, 714 F.3d at 351 (noting that a defendant’s criminal history is par-
ticularly relevant to the substantial-rights inquiry).
2
See United States v. Chavez-Chum, 768 F. App’x 247, 250 (5th Cir. 2019) (per
curiam) (noting that this “strongly counsels against concluding the court would have
imposed a different sentence”).
3
Cf. United States v. Carreto-Sanchez, 830 F. App’x 134, 136 (5th Cir. 2020) (per
curiam) (observing that an upward variance suggested that a Section 5D1.1 error did not
impact the defendant’s substantial rights).
3
Case: 21-50789 Document: 00516427616 Page: 4 Date Filed: 08/10/2022
No. 21-50789
that he would face additional deterrence based on his criminal history.
Castro-Delgado restarted his criminal career, concedes that his desire
to provide for his family drove him to reenter the United States illegally, and
that he has not yet been deterred by increased penalties for recidivism. In
those circumstances, the district court’s choice to impose an additional,
within-Guidelines measure of deterrence was not unreasonable.
AFFIRMED.
4