     Case: 11-11180     Document: 00511984101         Page: 1     Date Filed: 09/12/2012




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

                                                                            FILED
                                                                        September 12, 2012
                                       No. 11-11180                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

OMAR HORACIO LARA-ESPINOZA,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:11-CR-91


Before KING, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Omar Horacio Lara-Espinoza, a citizen of Mexico,
pleaded guilty to a one-count indictment charging him with being present in the
United States unlawfully after removal, in violation of 8 U.S.C. § 1326. The
presentence report (“PSR”), prepared on October 5, 2011, calculated his total
offense level to be 21 with a criminal history category of II, resulting in a
recommended Sentencing Guidelines range of 46 to 57 months of imprisonment.
Citing Guidelines § 5D1.1 and § 5D1.2, the PSR also noted that the applicable


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-11180

Guidelines range for a term of supervised release was at least two years but not
more than three years.
      Effective November 1, 2011, however, Guidelines section 5D1.1 was
amended to add subsection (c), which provides: “The 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).                The commentary
accompanying § 5D1.1(c) states:
             Application of Subsection (c).—In a case in which the
             defendant is a deportable alien specified in subsection
             (c) and supervised release is not required by statute,
             the court ordinarily should not impose a term of
             supervised release. Unless such a defendant legally
             returns to the United States, supervised release is
             unnecessary. If such a defendant illegally returns to
             the United States, the need to afford adequate
             deterrence and protect the public ordinarily is
             adequately served by a new prosecution. The court
             should, however, consider imposing a term of
             supervised release on such a defendant if the court
             determines it would provide an added measure of
             deterrence and protection based on the facts and
             circumstances of a particular case.

U.S.S.G. § 5D1.1, cmt. (n.5).1 Lara-Espinoza did not object to the PSR. On
December 1, 2011, the district court fully adopted the PSR and sentenced Lara-
Espinoza to a term of 50 months imprisonment, to be followed by three years of
supervised release.
      On appeal, Lara-Espinoza contends that the district court plainly erred in
imposing a term of supervised release.          Plain error review requires four



      1
          Guidelines commentary is binding and is equivalent in force to the Guidelines
language itself as long as the language and the commentary are not inconsistent. United
States v. Rayo-Valdez, 302 F.3d 314, 318 n.5 (5th Cir. 2002) (citation omitted).

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                                   No. 11-11180

determinations: whether there was error at all; whether it was plain or obvious;
whether the error affected the defendant’s substantial rights; and whether this
court should exercise its discretion to correct the error in order to prevent a
manifest miscarriage of justice. United States v. Olano, 507 U.S. 725, 732-37
(1993); United States v. Infante, 404 F.3d 376, 394 (5th Cir. 2005). This court
retains discretion to correct reversible plain error and will do so “only if the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Puckett v. United States, 556 U.S. 129, 135 (2009) (internal
quotation marks and alterations omitted).
      The district court’s application of the wrong Guidelines section was error
that is clear or obvious. See 18 U.S.C. § 3553(a)(4)(A)(ii); see also United States
v. Martin, 596 F.3d 284, 286 (5th Cir. 2010) (“the district court is to sentence
under the guidelines in effect at the time of sentencing”); United States v.
Gaither, 494 F. App’x 393, 393-94 (5th Cir. 2011) (unpublished) (application of
Guidelines section that was not in effect at the time of sentencing constituted
clear or obvious error). However, the error did not affect Lara-Espinoza’s
substantial rights because at sentencing, the district court conducted the factual
consideration of whether the imposition of supervised release “would provide an
added measure of deterrence and protection based on the facts and
circumstances of a particular case” in accordance with the amended Guidelines
commentary accompanying § 5D1.1. The district court noted,
             [I]t seems to me that if we are going to deter individuals
             . . . from coming back in the country after they have
             committed aggravated offenses, such as the one that
             you've committed, and particularly it is in strong
             societal interest to deter individuals who engaged in the
             kind of crime that you were convicted of, aggravated
             assault involving gang violence, then the sentence has
             to make sense. It has to be within the guideline range.



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                                 No. 11-11180

Notably also, we have held that the imposition of supervised release under the
current Guidelines provision, as challenged for the first time on appeal by Lara-
Espinoza, does not constitute plain error. See United States v. Dominguez-
Alvarado, No. 11-41304 (5th Cir. Sept. 12, 2012). Even though the district court
adopted an outdated Guidelines provision in imposing a term of supervised
release, Lara-Espinoza’s sentence was imposed in accordance with the amended
Guidelines; perceiving no effect on the defendant's substantial rights and no
miscarriage of justice that would require reversal, we hold that Lara-Espinoza’s
sentence is AFFIRMED.




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