                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                       September 21, 2015
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 15-5027
                                                 (D.C. No. 4:14-CR-00165-CVE-1)
ISMAEL SERRANO-RODRIGUEZ, a/k/a                             (N.D. Okla.)
Ismael Rodriguez Serrano, a/k/a Ismael
Serrano Rodriguez, a/k/a Mejel J. Serrano,
a/k/a Jose Rodriguez Orozco, a/k/a
Rodriguez Ismael Serrano, a/k/a Michael
Rodriguez Serrano, a/k/a Ismael Serrano,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, TYMKOVICH, and MORITZ, Circuit Judges.
                 _________________________________

      Ismael Serrano-Rodriguez appeals the district court’s imposition of supervised

release as part of his sentence for violating 8 U.S.C. § 1326. Finding no reversible

error, we affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value. See Fed. R. App. P. 32.1;
10th Cir. R. 32.1.
      In 2014, Serrano-Rodriguez pled guilty to being found in the United States

after his 2012 deportation. See 8 U.S.C. § 1326(a). The district court imposed a 37-

month prison sentence and three years of supervised release. Although Serrano-

Rodriguez didn’t object below, he now argues the district court’s decision to impose

supervised release was procedurally unreasonable because the court failed to

adequately explain its rationale for doing so under Gall v. United States, 552 U.S. 38

(2007).

      Serrano-Rodriguez concedes he did not raise this argument below, but asserts

we can nonetheless review his sentence for plain error. Relying on United States v.

Carrasco-Salazar, 494 F.3d 1270 (10th Cir. 2007), the government asserts Serrano-

Rodriguez waived his right to appeal at sentencing when his counsel responded, “No,

Your Honor” when asked, “[D]o you know of any legal reason why the sentence

cannot be imposed as stated?” Sent. Hr’g Tr., Doc. 32, at 16.1

      But by declining to object, Serrano-Rodriguez merely forfeited his challenge;

he didn’t waive it. Compare Carrasco-Salazar, 494 F.3d at 1272-73 (concluding

defendant waived previous objection by assuring district court that objection had

been sufficiently addressed), with United States v. Harris, 695 F.3d 1125, 1130 n.4

(10th Cir. 2012) (distinguishing between forfeiture and waiver and concluding

defense counsel’s “affirmative statement, ‘No, Your Honor,’ in response to the

      1
         Again relying on Carrasco-Salazar, the government also asserts Serrano-
Rodriguez invited any error. But in Carrasco-Salazar, we explicitly distinguished
between inviting an error and merely withdrawing an objection. See 494 F.3d at 1272
(“Here, however, the defendant did not actually invite the alleged error; he merely
stated that his prior objection had been resolved.”).
                                          2
court’s query[,] ‘Any objection?,’” only forfeited defendant’s challenge to jury

instruction).

       Because Serrano-Rodriguez forfeited his supervised-release argument, we

review for plain error. United States v. Romero, 491 F.3d 1173, 1178 (10th Cir.

2007). To prevail, Serrano-Rodriguez must show (1) an error, (2) that is plain,

(3) that affects his substantial rights, and (4) that seriously affects the fairness,

integrity, or public reputation of the judicial proceedings. United States v. Gonzalez-

Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc). An error is plain “only if it is

‘clear or obvious under current law.’” United States v. Poe, 556 F.3d 1113, 1129

(10th Cir. 2009) (quoting United States v. Kelly, 535 F.3d 1229, 1238 (10th Cir.

2008)). Serrano-Rodriguez can establish plain error by citing controlling authority

directly supporting his argument, or by showing that the Guidelines are “‘clearly and

obviously . . . limited’ to the interpretation [he] advocates.” Id. (quoting United

States v. Brown, 316 F.3d 1151, 1158 (10th Cir. 2003)).

       Although the district court acknowledged the likelihood that Serrano-

Rodriguez would be deported after serving his prison sentence, it nevertheless

ordered him to serve a three-year term of supervised release. But as Serrano-

Rodriguez points out, the Guidelines provide that “[t]he court ordinarily should not

impose a term of supervised release in a case in which supervised release is not

required by statute2 and the defendant is a deportable alien who likely will be


       2
        Supervised release is not required by statute for an alien found in the United
States after deportation. See 8 U.S.C. § 1326(b); 18 U.S.C. § 3583.
                                             3
deported after imprisonment.” U.S.S.G. § 5D1.1(c) (emphasis added). Instead, the

application notes following § 5D1.1 explain a deportable alien may be sentenced to

supervised release “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.

       Given § 5D1.1(c)’s statement that the “ordinar[y]” sentence shouldn’t include

supervised release for a deportable alien, Serrano-Rodriguez contends that imposing

supervised release under these circumstances constitutes a departure from the

Guidelines. Thus, he maintains, the district court should have explained why “the

facts and circumstances of [the] particular case” separate it from the “ordinar[y]”

scenario contemplated by § 5D1.1(c). See § 5D1.1 cmt. n.5; Gall, 552 U.S. at 46

(explaining that district court “must give serious consideration to the extent of any

departure from the Guidelines and must explain [its] conclusion that an unusually

lenient or an unusually harsh sentence is appropriate in a particular case with

sufficient justifications”). Because the district court didn’t comply with those

requirements in this case, Serrano-Rodriguez argues, the district court committed a

procedural error.

       But even if Serrano-Rodriguez is correct that the district court’s imposition of

supervised release constituted a departure, he cites no controlling precedent

establishing as much. Moreover, the Guidelines are not clearly and obviously limited

to the interpretation he advances. In fact, at least three of our sister circuits have



                                             4
come to the opposite conclusion. See United States v. Alvarado, 720 F.3d 153, 158

(2d Cir. 2013) (holding Gall’s departure analysis is not required when district court

elects to impose supervised release for deportable alien, notwithstanding “ordinarily”

language of § 5D1.1(c)); United States v. Valdavinos-Torres, 704 F.3d 679, 693 (9th

Cir. 2012) (same); United States v. Dominguez-Alvarado, 695 F.3d 324, 329 (5th Cir.

2012) (same). Thus, even if we assume Serrano-Rodriguez has demonstrated a

procedural error, that error is not clear and obvious under current law. See Poe, 556

F.3d at 1129.

      Serrano-Rodriguez’s failure to satisfy the second step of our plain-error test is

fatal to his argument. Thus, we need not address whether he can satisfy the remaining

steps. See United States v. Algarate-Valencia, 550 F.3d 1238, 1243 n.3 (10th Cir.

2008). Because Serrano-Rodriguez fails to establish the district court’s failure to

make explicit findings violated clearly established law, we affirm.


                                            Entered for the Court



                                            Nancy L. Moritz
                                            Circuit Judge




                                           5
