     Case: 13-40896      Document: 00512719998         Page: 1    Date Filed: 08/01/2014




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

                                                                                     FILED
                                                                                 August 1, 2014
                                    No. 13-40896                                 Lyle W. Cayce
                                  Summary Calendar                                    Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

VICTOR OJEDA PEREGRINA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:13-CR-214-1


Before SMITH, PRADO, and GRAVES, Circuit Judge.
PER CURIAM: *
       Victor Ojeda Peregrina (Ojeda) appeals the 27-month sentence imposed
following his guilty plea conviction of being unlawfully present in the United
States after being previously removed, in violation of 8 U.S.C. § 1326. He
argues that the district court reversibly erred by refusing to grant a third-level
reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(b) and
that the district court erred by imposing a term of supervised release without


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40896

referencing any particularized facts warranting imposing such a sentence in
this case.
      The Government concedes that there was error but argues that the error
was harmless. A procedural error may be harmless, even if the district court
does not consider the correct guidelines range, if the proponent of the sentence
can show that the district court would have imposed the same sentence for the
same reasons absent the error. See United States v. Ibarra-Luna, 628 F.3d
712, 713-19 (5th Cir. 2010).
      The record reflects that the district court was aware that it could reduce
Ojeda’s total offense level by one level. The district court listened to Ojeda’s
arguments in support of a lower sentence and then rejected those arguments.
The district court concluded that a 27-month sentence was appropriate in light
of the 18 U.S.C. § 3553(a) factors. In making this determination, the district
court specifically relied upon Ojeda’s personal characteristics, the serious
nature of the offense of conviction, and Ojeda’s criminal history. In imposing
the sentence, the district court stated that it would impose the same sentence
“even without the advisory guidelines system.” In light of the totality of the
record, any error committed was harmless. See id. at 718-19.
      The Government argues that Ojeda’s objection to the imposition of a
term of supervised release was insufficient to preserve the issue for appeal.
Ojeda argues that, because the district court cut off his objection before he
could state the reasons therefor, the issue should be deemed preserved for
appeal.      Because Ojeda’s argument fails even under the less deferential
standard of review, this court need not determine which standard is
appropriate. See United States v. Becerril-Pena, 714 F.3d 347, 349 & n.4 (5th
Cir. 2013).




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                                 No. 13-40896

      The district court retains the discretion to impose supervised release in
cases involving a deportable alien where added deterrence and protection are
needed. See United States v. Dominguez-Alvarado, 695 F.3d 324, 329 (5th Cir.
2012). Here, the district court adopted the presentence report, which informed
the court of the recommendation contained at U.S.S.G. § 5D1.1(c). The three-
year term of supervised release imposed was within the guidelines range of
supervised release. At sentencing the district court stated that it considered
the § 3553(a) factors, including the personal characteristics of Ojeda, in
determining that a guidelines sentence was appropriate. The district court’s
implicit consideration of § 5D1.1, its consideration of the sentencing factors in
§ 3553(a), and its express finding that a guidelines sentence was appropriate,
satisfies the requirement that the district court provide reasons for the
sentence imposed.     See Becerril-Pena, 714 F.3d at 350-51; Dominguez-
Alvarado, 695 F.3d at 329-30.
      AFFIRMED.




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