     Case: 12-10257       Document: 00512329564         Page: 1     Date Filed: 08/02/2013




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

                                                                            FILED
                                                                           August 2, 2013
                                     No. 12-10257
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

VICTOR MORALES-ARELLANO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 7:11-CR-13-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Victor Morales-Arellano pleaded guilty to one count of illegal reentry and
was sentenced to 96 months in prison to be followed by two years of supervised
release. He now appeals, challenging the imposition of a 16-level enhancement
under U.S.S.G. § 2L1.2 for a prior conviction of a crime of violence and the
imposition of a supervised release term. For the following reasons, we affirm.
       Morales-Arellano first contends that his prior offense of deadly conduct
under Texas law did not constitute a crime of violence. As he did not object to

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-10257

the enhancement on this basis in the district court, we review for plain error
under the familiar four-pronged standard. See Puckett v. United States, 556 U.S.
129, 135 (2009); United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th
Cir. 2009). The Government concedes that there was error and that it was clear
or obvious, the first two prongs. Although that concession is not binding, see
United States v. Hope, 545 F.3d 293, 295 (5th Cir. 2008), we agree with the
Government. Morales-Arellano was convicted of an offense under § 22.05(b)(2)
of the Texas Penal Code, and such an offense is not a crime of violence because
it lacks the required element of use, attempted use, or threatened use of force
against the person of another. See United States v. Hernandez-Rodriguez, 467
F.3d 492, 495 (5th Cir. 2006); see also United States v. Cabrera, 478 F. App’x 204,
206 (5th Cir. 2012).
      Nevertheless, the error did not affect Morales-Arellano’s substantial
rights, the third prong of the plain error test. After considering the statutory
factors under 18 U.S.C. § 3553(a) and noting Morales-Arellano’s prior
deportations and his criminal history–which included two drug convictions, an
attempted illegal reentry, and the deadly conduct conviction–the district court
concluded that the sentence would protect the public, provide just punishment,
and afford adequate deterrence. In the statement of reasons, the court said that
even if the guidelines calculations were incorrect, the sentence was the one it
would impose. Under these circumstances, there is not a reasonable probability
that, but for the error in applying the Guidelines, the court would have imposed
a lesser sentence. See United States v. Dickson, 632 F.3d 186, 191 (5th Cir.
2011).
      In his second point of error, Morales-Arellano contends that the district
court erred by imposing a term of supervised release in light of U.S.S.G.
§ 5D1.1(c). That subsection was added to § 5D1.1 effective November 1, 2011,
and provides that a court ordinarily should not impose supervised release in the
case of a deportable alien who is likely to be deported. Although this provision

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                                  No. 12-10257

is hortatory rather than mandatory, we have held that courts should not impose
supervised release absent a determination that it would “provide an added
measure of deterrence and protection based on the facts and circumstances of a
particular case.” United States v. Dominguez-Alvarado, 695 F.3d 324, 327-28
(5th Cir. 2012). Morales-Arellano asserts that the district court failed to make
the required determination. Again, because Morales-Arellano did not object, we
review for plain error. See id. at 328.
      Although the record does not indicate that the district court took
§ 5D1.1(c) into consideration, we conclude that any error does not require
reversal. The district court noted Morales-Arellano’s criminal history when
imposing sentence and said that the sentence would provide deterrence and
protect the public.   Even without any explanation by the court, Morales-
Arellano’s criminal history would have justified the imposition of supervised
release. See United States v. Cancino-Trinidad, 710 F.3d 601, 604, 606-07 (5th
Cir. 2013). Thus, Morales-Arellano’s substantial rights were not affected. See
id. at 607. In addition, we conclude on the facts of this case that any error would
not warrant the exercise of our discretion to correct it. See id. at 607 n.11.
      The judgment of the district court is AFFIRMED.




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