United States v. Rosa Canas

FILED
NOT FOR PUBLICATION OCT 03 2013

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-50308

Plaintiff - Appellee, D.C. No. 2:11-cr-01077-GW

v.
MEMORANDUM *
ROSA ALICIA CANAS,

Defendant - Appellant.

Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding

Submitted September 24, 2013 **

Before: RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.

Rosa Alicia Canas appeals from the district court’s judgment and challenges

the three-year term of supervised release imposed following her guilty-plea

conviction for being an illegal alien found in the United States following

deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1291, and we affirm, but remand with instructions to the district court to enter a

corrected judgment.

Canas contends that the district court procedurally erred by failing to

consider and explain why a term of supervised release was warranted in light of

U.S.S.G. § 5D1.1(c) (2011), which directs that a district court ordinarily should not

impose a term of supervised release if the defendant is a deportable alien. We

review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103,

1108 (9th Cir. 2010), and find none. The record reflects that the district court

considered the probation officer’s recommendation in favor of a term of supervised

release and determined that a supervised release term was warranted. See United

States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc) (“[A]dequate

explanation in some cases may . . . be inferred from the PSR or the record as a

whole.”).

Canas also challenges the term of supervised release as substantively

unreasonable. The district court did not abuse its discretion in imposing a three-

year term of supervised release. See Gall v. United States, 552 U.S. 38, 51 (2007).

The term is substantively reasonable in light of the section 3553(a) factors and the

totality of the circumstances, including the need to deter. See United States v.

Valdavinos-Torres, 704 F.3d 679, 692-93 (9th Cir. 2012); see also U.S.S.G.

2 12-50308
§ 5D1.1(c) cmt. n.5 (district court should consider imposing term of supervised

release on deportable alien if it determines supervised release would provide an

added measure of deterrence and protection).

In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062

(9th Cir. 2000), we remand the case to the district court with instructions that it

delete from the judgment the reference to section 1326(b)(2). See United States v.

Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to

delete the reference to section 1326(b)).

AFFIRMED; REMANDED to correct the judgment.

3 12-50308