Case: 12-40116 Document: 00512060848 Page: 1 Date Filed: 11/21/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 21, 2012
No. 12-40116
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JUAN ANDRES MENDOZA MARTINEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:11-CR-1172-1
Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
Juan Andres Mendoza Martinez (Mendoza) appeals the sentence imposed
for his conviction for illegal reentry into the United States. Mendoza argues that
his sentence is procedurally and substantively unreasonable because the district
court imposed a three-year term of supervised release, notwithstanding that
U.S.S.G. § 5D1.1(c) provides that supervised release “ordinarily” should not be
imposed “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.”
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 12-40116 Document: 00512060848 Page: 2 Date Filed: 11/21/2012
No. 12-40116
As Mendoza concedes, review is limited to plain error because he did not
raise this argument in the district court. United States v. Dominguez-Alvarado,
___ F.3d ___, 2012 WL 3985136 at *1 (5th Cir. Sept. 12, 2012) (No. 11-41304); see
Puckett v. United States, 556 U.S. 129, 135 (2009). The district court was aware
of the provisions of § 5D1.1(c) because they were set out in the presentence
report, which the district court adopted. Given the statements that the district
court made when it imposed the term of supervised release, which addressed
Mendoza’s history and characteristics and the need to deter, Mendoza fails to
show that the district court procedurally erred because it failed to explain its
term of supervised release. See United States v. Dominguez-Alvarado, 2012 WL
3985136, at **3-4. Nor does Mendoza show that the court erred because it failed
to give notice of its intent to depart upwardly. The term of supervise release was
not an upward departure but was within the statutory and guidelines ranges for
Mendoza’s conviction. See 8 U.S.C. § 1326(b)(1); 18 U.S.C. §§ 3559(a), 3583(b)(2).
Finally, Mendoza fails to show error, plain or otherwise, as to the substantive
reasonableness of his sentence, given that the district court’s statements at
sentencing accounted for why a term of supervised release was warranted. See
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009); § 5D1.1, comment.
(n.5).
Mendoza also contends that his offense level should have been reduced by
an additional point for acceptance of responsibility under § 3E1.1(b) because the
Government improperly refused to file the requisite motion for the reduction due
to Mendoza’s refusal to sign a plea agreement containing an appeal waiver. As
Mendoza concedes, this claim is foreclosed by United States v. Newson, 515 F.3d
374, 376-78 (5th Cir. 2008).
AFFIRMED.
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