     Case: 11-41416       Document: 00512070021         Page: 1     Date Filed: 11/30/2012




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

                                                                            FILED
                                                                        November 30, 2012
                                     No. 11-41416
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

IGNACIO HERNANDEZ SALAZAR, also known as Ignacio Hernandez Sotelo,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:11-CR-925-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Ignacio Hernandez Salazar appeals the 46-month sentence imposed for his
conviction for illegal reentry into the United States. Salazar argues that the
district court erred by imposing a three-year term of supervised release without
reasons, notwithstanding that U.S.S.G. § 5D1.1(c) provides that supervised
release “ordinarily” should not be imposed “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.” He maintains that the district court erred in

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 11-41416     Document: 00512070021      Page: 2    Date Filed: 11/30/2012

                                  No. 11-41416

determining that his prior Tennessee conviction for attempted rape constituted
a crime of violence warranting a 16-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(i). Finally, Salazar asserts that his sentence is substantively
unreasonable in light of the mitigating factors present in his case.
      In reviewing a sentence, we first examine whether the district court
committed any significant procedural error. Gall v. United States, 552 U.S. 38,
51 (2007). If the district court’s decision is procedurally sound, we will then
consider the substantive reasonableness of the sentence. Id. Because Salazar’s
arguments were not raised in the district court, review is limited to plain error.
See United States v. Ronquillo, 508 F.3d 744, 748 (5th Cir. 2007). To show plain
error, Salazar must show a forfeited error that is clear or obvious and that
affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes such a showing, we have the discretion to correct the error
but only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.
      The district court failed to account for Section 5D1.1(c) in applying the
Guidelines for supervised release and, thus, committed clear or obvious error.
See United States v. Blocker, 612 F.3d 413, 416 (5th Cir. 2010). Nonetheless,
Salazar is unable to show that the error affected his substantial rights. The
guidance against supervised release under Section 5D1.1(c) is hortatory rather
than mandatory. United States v. Dominguez-Alvarado, 695 F.3d 324, 329 (5th
Cir. 2012). Where Section 5D1.1(c) applies, “supervised release should not be
imposed absent a determination that supervised release would provide an added
measure of deterrence and protection based on the facts and circumstances of a
particular case.” Id.; accord § 5D1.1, cmt. n.5. The district court’s particularized
statements were adequate to explain why a supervised-release term was
appropriate. See Dominguez-Alvarado, 695 F.3d at 329-30.
      Salazar asserts that his prior Tennessee conviction does not qualify as a
crime of violence because the facts alleged in the charging affidavit do not reflect

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                                   No. 11-41416

the use of excessive force against the victim.        We employ the categorical
approach in determining whether an offense qualifies as a crime of violence
under Section 2L1.2, which requires us to look at the elements of the conviction
rather than the underlying facts. See United States v. Garza-Lopez, 410 F.3d
268, 273 (5th Cir. 2005). A review of the Tennessee rape statute and the
charging instrument in Salazar’s case reflects that the underlying offense
constitutes a “forcible sex offense.” See § 2L1.2, cmt. n.1(B)(iii); United States v.
Gonzalez-Terrazas, 529 F.3d 293, 297-98 (5th Cir. 2008); United States v. Beliew,
492 F.3d 314, 316 (5th Cir. 2007). The district court did not err, much less
plainly err, in imposing a 16-level enhancement for a crime of violence. See
Puckett, 556 U.S. at 135.
      With respect to Salazar’s challenge to the substantive reasonableness of
his sentence, the district court considered his request for a lower sentence, but
elected to impose a within-guidelines sentence.              Such a sentence is
presumptively reasonable. See, e.g., United States v. Newson, 515 F.3d 374, 379
(5th Cir. 2008). Here, the district court imposed a sentence at the bottom of the
applicable guideline range, then granted Salazar a one-level reduction; the court
imposed the same 46-month sentence, which was in the middle of the newly
applicable range. Although Salazar notes that the district court had found
various mitigating factors, the court was aware of those facts and took them into
account in determining that the 46-month sentence was appropriate. Salazar
has not shown that the district court failed to account for a significant factor,
gave weight to an improper factor, or clearly erred in its balancing of the
sentencing factors. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
Accordingly, he has failed to show that the district court plainly erred by
imposing the sentence. See Puckett, 556 U.S. at 135. The judgment of the
district court is AFFIRMED.




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