Case: 12-40103 Document: 00512103723 Page: 1 Date Filed: 01/07/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 7, 2013
No. 12-40103
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
OMAR ARELLANO-GONZALEZ,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:11-CR-1184-1
Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Omar Arellano-Gonzalez appeals the sentence imposed pursuant to his
guilty-plea conviction for illegal reentry into the United States after deportation.
He contends: the sentence was substantively unreasonable because the district
court imposed a three-year term of supervised release without explanation,
notwithstanding that advisory sentencing Guideline § 5D1.1(c) states supervised
release should ordinarily not be imposed on a deportable alien; and the sentence
was procedurally unreasonable because the court provided no explanation for
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 12-40103
imposing supervised release, and did not provide notice of its intent to depart
from the advisory Guidelines sentencing range.
Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly-preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines is
reviewed de novo; its factual findings, only for clear error. E.g., United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas,
404 F.3d 355, 359 (5th Cir. 2005). As Arellano concedes, he failed to raise his
procedural-error contention in district court; therefore, review is only for plain
error. United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007). To show
reversible plain error, Arellano must show, inter alia, forfeited error that was
clear or obvious. Puckett v. United States, 556 U.S. 129, 135 (2009). He fails to
do so.
The term of supervised release imposed on Arellano was within the
statutory and advisory Guidelines sentencing range for his offense of conviction;
therefore, despite the language of Guideline § 5D1.1(c), it does not trigger a
“departure analysis”. See United States v. Dominguez-Alvarado, 695 F.3d 324,
329 (5th Cir. 2012). Therefore, the court was not required to give notice of its
possibly imposing supervised release. See id.
Further, the district court was aware of the provisions of Guideline
§ 5D1.1(c) because they were set out in the presentence investigation report,
which the court adopted. Given the court’s considering at sentencing both
Arellano’s request for a lenient sentence and his violent criminal history and
alcohol-abuse problems, Arellano fails to show the district court procedurally
erred in declining to explain its imposing supervised release. See id. at 329-30.
Indeed, Guideline § 5D1.1, comment 3(C), states “it is highly recommended that
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No. 12-40103
a term of supervised release [] be imposed” where, as here, defendant has a
history of drug or alcohol abuse.
Arguably, Arellano’s contention that the imposition of supervised release
is substantively unreasonable was not properly preserved and, therefore, subject
to plain-error review. In any event, under the more lenient abuse-of-discretion
standard, the contention fails. Because the supervised release was within the
advisory Guidelines sentencing range, our court applies a presumption of
reasonableness and infers the district court considered all pertinent sentencing
considerations in imposing the sentence. United States v. Mares, 402 F.3d 511,
519 (5th Cir. 2005) (“When the judge exercises [his] discretion to impose a
sentence within the [advisory] Guidelines [sentencing] range and states for the
record that [he] is doing so, little explanation is required.”).
AFFIRMED.
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