     Case: 11-41241   Document: 00512126774   Page: 1   Date Filed: 01/28/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                 FILED
                                                              January 28, 2013
                              No. 11-41241
                            Summary Calendar                    Lyle W. Cayce
                                                                     Clerk

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

GABINO REYES-SERNA, also known as Jose Reyes, also known as Gabino
Reyes, Jr.,

                                         Defendant-Appellant

Cons. w/ No. 11-41242

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

GABINO REYES-SERNA,

                                         Defendant-Appellant


                Appeals from the United States District Court
                     for the Southern District of Texas
                          USDC No. 2:11-CR-643-1
                          USDC No. 2:11-CR-919-1
     Case: 11-41241       Document: 00512126774         Page: 2     Date Filed: 01/28/2013

                                      No. 11-41241
                                    c/w No. 11-41242

Before WIENER, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Gabino Reyes-Serna appeals the sentences imposed
(1) following his guilty plea for illegal reentry and (2) on the revocation of his
supervised release. On the illegal reentry conviction, the district court sentenced
Reyes-Serna to a 30-month prison term to be followed by three years of
supervised release, and on revocation of the prior term of supervised release, it
imposed a 14-month prison sentence to be followed by an additional 12-month
term of supervised release.
       Reyes-Serna challenges the terms of supervised release as procedurally
and substantively unreasonable. Specifically, he argues that the district court
erred procedurally in his illegal reentry case by failing to give notice that it was
departing from the Guidelines and, in both cases, by failing to explain its
decision to impose supervised release notwithstanding 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.” U.S.S.G. § 5D1.1(c). He
also asserts that the district court imposed substantively unreasonable
sentences because it failed to account for this guideline.
       As Reyes-Serna failed to object to the procedural reasonableness in either
case, our review is limited to plain error.                       See United States v.
Dominguez-Alvarado, 695 F.3d 324, 327 (5th Cir. 2012); United States v.
Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). To succeed under this standard,
he must show an error that is clear or obvious and that affects his substantial
rights, but even so, we generally will exercise our discretion to correct the error


       *
         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. 11-41241
                                c/w No. 11-41242

only if it “seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.”   Puckett v. United States, 556 U.S. 129, 135 (2009)
(internal quotation marks and citation omitted).
      At sentencing, the district court noted Reyes-Serna’s criminal history,
explained that the sentences were warranted under the 18 U.S.C. § 3553(a)
sentencing factors and were necessary to protect the public, and emphasized to
Reyes-Serna that he was not welcome in the United States. As the district
court’s particularized statement was sufficient to justify the imposition of
supervised release in both cases, it did not plainly err in imposing such terms .
See Dominguez-Alvarado, 695 F.3d at 330; accord § 5D1.1, comment.
(nn.3(A),(B), 5).
      Moreover, the term of supervision that the district court imposed for the
illegal reentry conviction was within the statutory and guidelines range for his
offense of conviction.   Therefore, it was not a departure, and no notice
requirement was triggered. See Dominguez-Alvarado, 695 F.3d at 329.
      Reyes-Serna did object in the district court that his sentences were
substantively unreasonable. The three-year term of supervised release that the
district court imposed as part of the illegal reentry sentence was within the
guidelines range and thus is presumed reasonable. See Dominguez-Alvarado,
695 F.3d at 329; United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). We
infer that the district court considered all pertinent sentencing considerations
in imposing the sentence. See United States v. Mares, 402 F.3d 511, 519 (5th
Cir. 2005). Reyes-Serna has not overcome this presumption, especially in light
of the district court’s adoption of the presentence report, which expressly stated
that a deportable alien ordinarily should not receive a term of supervised
release. Accordingly, the district court did not abuse its discretion in imposing
a term of supervised release. See Gall v. United States, 552 U.S. 38, 51 (2007).



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                                  No. 11-41241
                                c/w No. 11-41242

      As for the substantive reasonableness of the revocation sentence, we
generally consider such a sentence substantively reasonable if it falls below the
statutory maximum sentence, as did Reyes-Serna’s 12-month term.                See
Whitelaw, 580 F.3d at 265. Reyes-Serna offers no compelling reason to treat his
situation differently. Accordingly, he has not shown that his revocation sentence
is plainly unreasonable. See United States v. Miller, 634 F.3d 841, 843 (5th Cir.),
cert. denied, 132 S. Ct. 496 (2011).
      The judgments of the district court are AFFIRMED.




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