Case: 12-40208 Document: 00512092382 Page: 1 Date Filed: 12/21/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 21, 2012
No. 12-40208
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ENCARNACION HURTADO-CRUZ,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 2:11-CR-1062-1
Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Encarnacion Hurtado-Cruz (Hurtado) appeals the sentence imposed
following his guilty plea conviction for being an alien unlawfully present in the
United States after deportation. The district court sentenced Hurtado to a 46-
month term of imprisonment and to a two-year term of supervised release.
Hurtado contends that the district court’s imposition of a term of
supervised release resulted in a procedurally and substantively unreasonable
sentence. Specifically, he argues that the district court erred procedurally by
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40208 Document: 00512092382 Page: 2 Date Filed: 12/21/2012
No. 12-40208
failing to give notice that it was departing from the Guidelines and by failing to
explain its imposition of a term of supervised release. He also asserts that the
district court imposed a substantively unreasonable sentence because it failed
to account for U.S.S.G. § 5D1.1(c), which provides that “[t]he 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.”
Because he failed to raise an objection to his sentence in the district court,
our review is limited to plain error. See United States v. Dominguez-Alvarado,
695 F.3d 324, 327 (5th Cir. 2012). To show plain error, Hurtado must show a
forfeited error that is clear or obvious and that affects his substantial rights. See
Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing,
this court has the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
The term of supervision imposed on Hurtado was within the statutory and
guidelines range for his offense of conviction; therefore, it did not trigger a
“departure analysis.” See Dominguez-Alvarado, 695 F.3d at 329. Hurtado’s
contention that the district court was required to give notice of its departure
from the guidelines thus fails. See id. Further, at sentencing the district court
noted Hurtado’s criminal history and explained that the sentence imposed on
Hurtado was warranted under the guidelines and the sentencing factors of 18
U.S.C. § 3553(a). This was a sufficient explanation for the within-guidelines
sentence. See id.; see also United States v. Mares, 402 F.3d 511, 519 (5th Cir.
2005) (stating that “little explanation is required” where the judge imposes a
sentence within the guideline range). Finally, because the supervised release
term was within the guideline range, we apply a presumption of reasonableness,
and we infer that the district court considered all pertinent sentencing
considerations in imposing the sentence. See Mares, 402 F.3d at 519.
AFFIRMED.
2