     Case: 18-50099       Document: 00514921787         Page: 1     Date Filed: 04/18/2019




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


                                       No. 18-50099
                                                                                    FILED
                                                                                April 18, 2019
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk

               Plaintiff - Appellee

v.

ALEXANDER CHAVEZ-CHUM,

               Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:17-CR-280-1


Before BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Alexander Chavez-Chum, a deportable alien, challenges the procedural
and substantive reasonableness of his sentence, imposed following his guilty-
plea conviction for unlawful reentry, in violation of 8 U.S.C. § 1326(a), (b)(1).
Chavez claims the district court erred procedurally by failing to explain the
imposition of supervised release; substantively, by imposing it without giving
significant weight to Sentencing Guideline § 5D1.1(c), which states deportable


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 18-50099    Document: 00514921787      Page: 2    Date Filed: 04/18/2019



                                  No. 18-50099
aliens “ordinarily” should not receive supervised release. U.S.S.G. § 5D1.1(c).
AFFIRMED.
                                        I.
      In September 2017, Border Patrol Agents patrolling near Marfa, Texas,
encountered five undocumented aliens, one of whom was then-26-year-old
Chavez. He had previously been removed in August 2014, after pleading guilty
to felony possession of cocaine, and had not received consent from the
appropriate agencies to reapply for admission into the United States following
that removal.
      Chavez pleaded guilty to one felony count of entry after removal. The
presentence investigation report (PSR) recommended: Chavez’ total offense
level was ten; his criminal history category, II; his resulting Guidelines
sentencing range, eight to 14 months’ imprisonment; and his supervised
release, up to three years. He did not object to the PSR.
      At sentencing, however, Chavez’ counsel requested the court conclude
supervised release “not appropriate” for his client, pursuant to Guideline
§ 5D1.1(c), because Chavez was a deportable alien “who likely will be deported
after imprisonment”. See U.S.S.G. § 5D1.1(c) (“The court ordinarily should not
impose a term of supervised release in a case in which . . . defendant is a
deportable alien who likely will be deported after imprisonment.”).
      Despite counsel’s request, the court adopted the PSR and sentenced
Chavez, “pursuant to . . . the sentencing factors set forth in 18 U.S.C.
§ 3553(a)”, to eight months’ imprisonment and three years’ nonreporting
supervised release. The court did not mention Guideline § 5D1.1(c) during
sentencing, nor make any findings in response to Chavez’ assertions against
imposing supervised release. Following pronouncement of sentence, Chavez
“[o]bject[ed] to the imposition of supervised release”.


                                        2
    Case: 18-50099     Document: 00514921787      Page: 3   Date Filed: 04/18/2019



                                  No. 18-50099
      Chavez was released from prison on 3 May 2018. He was removed to
Guatemala two weeks later.
                                        II.
      Chavez claims the court committed procedural error by failing to explain
its imposition of supervised release; substantive error, by imposing it without
giving significant weight to Guideline § 5D1.1(c).
      Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 48–51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008).
                                        A.
      Chavez contends the imposition of supervised release was procedurally
unreasonable, and therefore procedural error, because the court did not
explain why it was warranted. The parties dispute whether this issue was
preserved in district court.
                                        1.
       “To preserve error, an objection must be sufficiently specific to alert the
district court to the nature of the [claimed] error and to provide an opportunity
for correction.” United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009) (citing
United States v. Ocana, 204 F.3d 585, 589 (5th Cir. 2000)). For the following
reasons, Chavez did not preserve his procedural claim. See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).
                                        3
    Case: 18-50099     Document: 00514921787      Page: 4   Date Filed: 04/18/2019



                                  No. 18-50099
      In Mondragon-Santiago, as here, defendant, on appeal, challenged the
district court’s failure to explain the sentence imposed, which did not grant
defendant’s requested downward departure.          Id. at 359–60.     The parties
disputed whether defendant had preserved error on the procedural
reasonableness of his sentence, and our court ruled his “objection sufficed to
alert the district court of his disagreement with the substance of the sentence,
but not with the manner in which it was explained”. Id. at 361.
      Similarly, Chavez’ procedural challenge is to the district court’s failure
to explain the imposition of supervised release, but he never requested
clarification or explanation by the court.      As in Mondragon-Santiago, his
challenge in district court was only to the “substance of the sentence”, without
question or objection as to why Guideline § 5D1.1(c) was not persuasive or why
supervised release was imposed (i.e. “the manner in which [the sentence] was
explained”). See id.; see also United States v. Dominguez-Alvarado, 695 F.3d
324, 327–28 (5th Cir. 2012) (holding objection to “term of supervised release
. . . imposed as an upward departure” insufficient to preserve claimed error);
United States v. Becerril-Peña, 714 F.3d 347, 349 n.4 (5th Cir. 2013) (“To the
extent Becerril makes a more expansive [Guideline] § 5D1.1 objection on
appeal, we would normally review for plain error.” (citation omitted)).
                                        2.
      Because Chavez did not preserve his procedural challenge, review is only
for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir.
2012). Under that standard, Chavez must show a forfeited plain (clear or
obvious) error that affected his substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). To demonstrate a plain error affected his substantial
rights, defendant must show it affected the outcome in district court. United
States v. Olano, 507 U.S. 725, 734 (1993). If he does show reversible plain
error, we have the discretion to correct it, but should do so only if it “seriously
                                        4
    Case: 18-50099     Document: 00514921787      Page: 5    Date Filed: 04/18/2019



                                  No. 18-50099
affect[s] the fairness, integrity or public reputation of judicial proceedings”. Id.
at 732 (alteration in original) (quoting United States v. Young, 470 U.S. 1, 15
(1985)).
      For purposes of our plain-error review, the court did err by not
explaining why supervised release was warranted; and, the error was clear or
obvious because “the law requiring courts to explain sentences is clear”.
Mondragon-Santiago, 564 F.3d at 364 (citation omitted); cf. United States v.
Salazar, 499 F. App’x 351, 353 (5th Cir. 2012) (explaining that, although
district court’s statement was sufficient to support imposing supervised
release, its failure to account for Guideline § 5D1.1(c) was clear or obvious error
which did not affect defendant’s substantial rights on plain-error review). But,
as explained below, Chavez cannot show the plain error affected his
substantial rights. Therefore, his procedural claim fails plain-error review.
      A sentence is procedurally unreasonable if the “court . . . err[ed]
procedurally, by”: “miscalculating or failing to calculate the sentencing range
under the Guidelines, treating the Guidelines as mandatory, failing to consider
the [18 U.S.C.] § 3553(a) [sentencing] factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence—
including an explanation for any deviation from the Guidelines range”.
Mondragon-Santiago, 564 F.3d at 360 (emphasis added) (citation omitted).
“[A] sentence within a properly calculated Guideline[s] range is presumptively
reasonable”. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      First, to satisfy Guideline § 5D1.1(c), “a district court should discharge
its duties . . . by considering the applicable § 3553(a) factors of deterrence and
protection . . . and imposing reasoned and individualized sentences under the
circumstances presented with appropriate explanation given”. Becerril-Peña,
714 F.3d at 351. Here, the court stated it sentenced Chavez “pursuant to” the


                                         5
    Case: 18-50099     Document: 00514921787     Page: 6   Date Filed: 04/18/2019



                                  No. 18-50099
§ 3553(a) factors, which strongly counsels against concluding the court would
have imposed a different sentence.
      Second, Chavez’ procedural challenge is governed by our court’s previous
decisions in Mondragon-Santiago, 564 F.3d at 361–64, and Dominguez-
Alvarado, 695 F.3d at 328–30. For each, review was only for plain-error.
      In Mondragon-Santiago, defendant asserted his sentence “[was]
procedurally unreasonable because the district court did not adequately
explain it”. 564 F.3d at 361–62. But, he “fail[ed] to show that an explanation
would have changed his sentence” because it was within the advisory
Guidelines sentencing range and presumptively reasonable. See id. at 365
(“While a district court errs by failing to explain a sentence, the effect of that
error on our review for reasonableness is diminished when the sentence is
within the Guidelines range.”).
      In Dominguez-Alvarado, defendant claimed the court procedurally erred
in deviating, without explanation, from Guideline § 5D1.1(c) in imposing
supervised release on a deportable alien. 695 F.3d at 329. Our court rejected
his claim, ruling “[n]o departure analysis [was] triggered” because the PSR
recommended up to three years’ supervised release and “the district court
imposed three years”. Id. Therefore, because the court did not depart from the
recommended Guidelines range for supervised release, no explanation was
required for the sentence to be procedurally reasonable. See id.
      Chavez’ recommended “[G]uideline range for a term of supervised
release [was] 1 to 3 years”. As in Dominguez-Alvarado, the imposition of three
years’ supervised release was within the recommended Guidelines range for a
supervised-release term, and therefore, presumptively reasonable. See 695
F.3d at 329. Chavez’ claim fails because he cannot rebut the presumption of
procedural reasonableness and show that, but-for the lack of explanation why
supervised release was imposed, the district court would have made a different
                                        6
       Case: 18-50099   Document: 00514921787        Page: 7    Date Filed: 04/18/2019



                                     No. 18-50099
sentencing decision.        See Mondragon-Santiago, 564 F.3d at 365.            Again,
because Chavez’ substantial rights were not affected, his claim fails under
plain-error review.
                                           B.
        In challenging the district court’s imposition of supervised release as
substantively unreasonable, Chavez claims the court did not accord significant
weight to Guideline § 5D1.1(c). As reflected supra, and discussed further
below, Chavez’ substantive-reasonableness challenge was preserved in district
court and, therefore, is reviewed for abuse-of-discretion. Gall, 552 U.S. at 51.
        Substantive reasonableness is evaluated given the totality of the
circumstances of defendant’s sentence, id.; and, “[w]hen reviewing a sentence
for reasonableness, the court ‘will infer that the judge has considered all the
factors for a fair sentence set forth in the Guidelines’”, United States v. Cooks,
589 F.3d 173, 186 (5th Cir. 2009) (quoting United States v. Mares, 402 F.3d
511, 519–20 (5th Cir. 2005)). The presumption of substantive reasonableness
“is rebutted only upon a showing that the sentence does not account for a factor
that should receive significant weight, it gives significant weight to an
irrelevant or improper factor, or it represents a clear error of judgment in
balancing sentencing factors”. Id. at 186 (citation omitted).
        Chavez’ substantive-unreasonableness claim is to the imposition of
supervised-release; he maintains the district court did not “account for a factor
that     should   receive    significant   weight”   (i.e.   Guideline   §   5D1.1(c)’s
recommendation, presented by Chavez in district court, that “ordinarily”
deportable aliens not receive supervised release).
        “Appellate review is highly deferential” to sentencing decisions, United
States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008), because “[t]he
sentencing judge is in a superior position to find facts and judge their import
under § 3553(a) in the individual case”, Gall, 552 U.S. at 51. “The fact that the
                                            7
    Case: 18-50099     Document: 00514921787       Page: 8   Date Filed: 04/18/2019



                                  No. 18-50099
appellate court might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.” Id.
      As discussed supra, Chavez’ attorney asked the court at sentencing not
to impose supervised release and read Guideline § 5D1.1(c) to it. Therefore,
the court was made aware of the existence and text of the Guideline, and we
can conclude it was “implicitly” considered by the court and rejected. See, e.g.,
Becerril-Peña, 714 F.3d at 350 (citations omitted).          Our court has “been
skeptical of requests to second-guess district courts’ decisions to impose terms
of supervised release . . . even where the court committed plain error by ruling
contrary to [Guideline] § 5D1.1(c)”.         Id. (footnote and citation omitted).
Guideline § 5D1.1(c)’s language is “hortatory, not mandatory”, Dominguez-
Alvarado, 695 F.3d at 329, leaving its ultimate application to the discretion of
the district court. See Becerril-Peña, 714 F.3d at 350; United States v. Tamez-
Cavazos, 537 F. App’x 407, 409 (5th Cir. 2013); Salazar, 499 F. App’x at 353.
And finally, the court explicitly sentenced Chavez “pursuant to” the 18 U.S.C.
§ 3553(a) sentencing factors, fulfilling its obligation under Gall, 552 U.S. at 51.
See also Becerril-Peña, 714 F.3d at 350–51. The district court did not abuse its
discretion; therefore, the imposition of supervised             release   was not
substantively unreasonable.
                                        III.
      For the foregoing reasons, the judgment is AFFIRMED.
Judge Haynes concurs in the judgment only.




                                         8
