12-3413-cr
United States v. Padilla Alvarado

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                             August Term, 2012

  (Argued: June 19, 2013                                                      Decided: June 24, 2013)


                                           Docket No. 12-3413-cr

            _______________________________________________________________


                                         UNITED STATES OF AMERICA,

                                                  Appellee,


                                                      v.


     HEMENEGILDO PADILLA ALVARADO, AKA HEMENGILDO PADILLA ALVARADO, AKA
  HEMENEGILDO ALVARADO PADILLA, AKA HEMENEGILDO ALVARADO, AKA ANGEL BURGOS,
   AKA JOSE HERNANDEZ, AKA INDALECIO RODRIGUEZ, AKA PABLO CASTILLO, AKA JOSE
                         MARTINEZ, AKA PABLO CASTIO,

                                             Defendant-Appellant.

            _______________________________________________________________


Before: CALABRESI, CABRANES, and B.D. PARKER, Circuit Judges.

          In this appeal we consider whether the United States District Court for the Southern District

of New York (William H. Pauley, III, Judge) plainly erred by sentencing a defendant to, inter alia, a

three-year term of supervised release even though Section 5D1.1(c) of the United States Sentencing

Guidelines provides that district courts “ordinarily should not impose a term of supervised release in

a case in which . . . the defendant is a deportable alien who likely will be deported after

imprisonment.” U.S.S.G. § 5D1.1(c). Although the defendant in this case is such an alien, the
District Court imposed a sentence including supervised release after stating its view that the

sentence was needed to deter the defendant from re-entering the United States illegally in the future.

In these circumstances, we join some of our sister Circuits in concluding that imposing supervised

release is appropriate and not a departure from Section 5D1.1(c) of the Guidelines if the district

court finds “that supervised release would provide an added measure of deterrence and protection

based on the facts and circumstances of a particular case.” United States v. Valdavinos-Torres, 704 F.3d

679, 693 (9th Cir. 2012) (quotation marks omitted); United States v. Dominguez-Alvarado, 695 F.3d 324,

329 (5th Cir. 2012). The District Court made such a finding here, and therefore no further

explanation was necessary.

        Affirmed.

                                                PEGGY CROSS-GOLDENBERG (Edward S. Zas, on the
                                                      brief), Assistant Federal Public Defenders,
                                                      Federal Defenders of New York, Inc., New
                                                      York, NY, for Hemenegildo Padilla Alvarado.

                                                P. IAN MCGINLEY (Brent S. Wible, on the brief),
                                                       Assistant United States Attorneys, for Preet
                                                       Bharara, United States Attorney, United States
                                                       Attorney’s Office for the Southern District of
                                                       New York, New York, NY, for the United States
                                                       of America.


PER CURIAM:

        In this appeal we consider whether the United States District Court for the Southern District

of New York (William H. Pauley, III, Judge) plainly erred by sentencing defendant-appellant

Hemenegildo Padilla Alvarado (“Padilla”) to, inter alia, a three-year term of supervised release even

though Section 5D1.1(c) of the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”)

provides that district courts “ordinarily should not impose a term of supervised release in a case in

which . . . the defendant is a deportable alien who likely will be deported after imprisonment.”


                                                   2
U.S.S.G. § 5D1.1(c).1 Although Padilla is such an alien, the District Court imposed a sentence

including supervised release after stating its view that the sentence was needed to deter Padilla from

re-entering the United States illegally in the future. In these circumstances, we join some of our

sister Circuits in concluding that imposing supervised release is appropriate and not a departure

from the amended version of Section 5D1.1 of the Guidelines if the district court finds “that

supervised release would provide an added measure of deterrence and protection based on the facts

and circumstances of a particular case.” United States v. Valdavinos-Torres, 704 F.3d 679, 693 (9th Cir.

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

2012). The District Court made such a finding here, and therefore no further explanation was

necessary.

          Accordingly, we affirm the judgment of the District Court.

                                                BACKGROUND

          Padilla, a citizen of the Dominican Republic, was indicted on August 10, 2011, on one count

of illegally re-entering the United States, in violation of 8 U.S.C. § 1326(a) and (b)(2), after he was

deported following a conviction for an aggravated felony. Padilla had previously been deported

from the United States twice—first in 2003 and again in 2008. Indeed, after his first deportation, he

returned to the United States and, in 2006, was convicted of illegal re-entry following yet another

conviction for an aggravated felony. He was subsequently deported in 2008. Nonetheless, he re-

entered the United States again, and was most recently found to be in the United States illegally on

January 21, 2011, when New York City police officers arrested him in Manhattan in connection with

a robbery. He pleaded guilty to the instant charged offense on October 19, 2011, without a plea

agreement.




1   Section 5D1.1 of the Guidelines was amended on November 1, 2011 to add subsection (c).
                                                          3
        At the sentencing hearing, which took place on June 5, 2012, the District Court focused on

the need to deter Padilla from re-entering the United States illegally. Specifically, the District Court

stated that Padilla “ha[d] demonstrated through his conduct that he’s really not deterred by a

significant term of imprisonment” and that because of Padilla’s “complete disregard for the law of

the United States,” it was necessary to “escalat[e] [the] terms of imprisonment.” App’x 55. The

District Court also noted that there was “a need in this case to protect the community because

[Padilla] has a history of violent crimes of different kinds and crimes that threaten public safety.” Id.

        Padilla’s undisputed Guidelines range was 57 to 71 months, see id. at 27, 35, but Padilla asked

the District Court for a below-Guidelines sentence of 36 months’ imprisonment, id. at 50. The

government argued that a Guidelines sentence was appropriate, given that Padilla had (1) previously

been deported from the United States on two separate occasions, (2) committed the instant offense

while on supervised release, and (3) committed serious crimes involving violence in the United

States. Id. at 51-52. The District Court concluded that a term of 36 months’ imprisonment was not

sufficient to deter him from attempting to re-enter the United States illegally. It went on to express

its view that it “ha[d] no real hope that [Padilla was] not going to try to turn around and come right

back into the United States after any term of imprisonment that he serves.” Id. at 56. It

emphasized, moreover, that Padilla needed to “get the message” that he could not return to the

United States. Id.

        The District Court ultimately sentenced Padilla to 57 months’ imprisonment, a term at the

bottom of the applicable Guidelines range, “to be followed by three years of supervised release,”

subject to certain conditions, including that he “obey all immigration laws and comply with all

directives of immigration authorities.” Id. at 57. Padilla did not object to the imposition of

supervised release before the District Court.

        This appeal followed.

                                                    4
                                             DISCUSSION

        On appeal, Padilla contends that the District Court erred in imposing a three-year term of

supervised release. In particular, he argues that the District Court plainly erred by not adequately

explaining why supervised release was warranted, given that Section 5D1.1(c) of the Guidelines

states that district courts “ordinarily should not impose a term of supervised release in a case in

which . . . the defendant is a deportable alien who likely will be deported after imprisonment.”

U.S.S.G. § 5D1.1(c).

                                                    A.

        Criminal sentences are generally reviewed for reasonableness, which “requires an

examination of the length of the sentence (substantive reasonableness) as well as the procedure

employed in arriving at the sentence (procedural reasonableness).” United States v. Johnson, 567 F.3d

40, 51 (2d Cir. 2009). A district court errs procedurally when “it fails to calculate (or improperly

calculates) the Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to

consider the § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately

to explain the chosen sentence.” United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012) (citing Gall

v. United States, 552 U.S. 38, 51 (2007)).

        Where, as here, a defendant contests the procedural reasonableness of his sentence on

appeal, but did not raise his objections before the district court, we review for plain error. United

States v. Verkhoglyad, 516 F.3d 122, 127-28 (2d Cir. 2008). A finding of “plain error” requires that

        (1) there is an error; (2) the error is clear or obvious, rather than subject to
        reasonable dispute; (3) the error affected the appellant’s substantial rights, which in
        the ordinary case means it affected the outcome of the district court proceedings;
        and (4) the error seriously affects the fairness, integrity or public reputation of
        judicial proceedings.

United States v. Marcus, 130 S. Ct. 2159, 2164 (2010) (citations, alteration, and internal quotation

marks omitted); see also United States v. Zangari, 677 F.3d 86, 95 (2d Cir. 2012). Rigorous plain error

                                                    5
analysis is especially appropriate in contexts that present the possibility of “sandbagging”―i.e., the

risk that a defendant will strategically withhold an objection below, only to raise it on appeal. We do

not suggest that this was done in the case before us. But the situation presented in this appeal is one

that poses such a danger. Defendants in similar circumstances might well be tempted to say nothing

about a district court’s failure to give specific reasons for the imposition of supervised related and

then, if displeased by the sentence the district court gives, seek an order for resentencing on appeal.

                                                             B.

         As noted, Padilla’s central complaint is that the District Court did not adequately explain

why a term of supervised release was warranted in his case. He relies on the fact that Section

5D1.1(c) generally discourages district courts from imposing supervised release on aliens “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 supervised release is not required by statute

and the defendant is a deportable alien who likely will be deported after imprisonment.” (emphasis

supplied)). However, the commentary accompanying Section 5D1.1 clarifies that “[t]he court

should . . . consider imposing a term of supervised release on such a defendant if the court determines it would provide

an added measure of deterrence and protection based on the facts and circumstances of a particular case.” Id.

§ 5D1.1, cmt. n.5 (italics in original).2

         Accordingly, although imposing a term of supervised release on aliens “who likely will be

deported after imprisonment” is “ordinarily” discouraged pursuant to Section 5D1.1(c), the

Guidelines commentary specifies that a district court should consider imposing supervised release

on such defendants if it would provide “an added measure of deterrence and protection.” Id.; see also

United States v. Valdavinos-Torres, 704 F.3d 679, 693 (9th Cir. 2012); United States v. Dominguez-Alvarado,

2“[C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v.
United States, 508 U.S. 36, 38 (1993); see also United States v. Steele, 714 F.3d 751, 754 (2d Cir. 2013).

                                                              6
695 F.3d 324, 329 (5th Cir. 2012) (“To be sure, 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.”).3 In other words, if a district court

makes a finding that “an added measure of deterrence and protection” is appropriate “based on the

facts and circumstances of a particular case,” then imposing supervised release on an “alien who

likely will be deported after imprisonment” does not constitute a departure from the Guidelines. A

district court is not required explicitly to link its finding that added deterrence is needed to its

decision to impose a term of supervised release; but, for the sake of clarity, we would encourage

district courts to do so.

                                                               C.

         The District Court in this case found that Padilla is particularly likely to re-enter the country

illegally again in the future, and therefore that “an added measure of deterrence and protection” was

needed, U.S.S.G. § 5D1.1, cmt. n.5; see also Valdavinos-Torres, 704 F.3d at 693; Dominguez-Alvarado, 695

F.3d at 329. Indeed, as noted above, the District Court stated that it was necessary to “escalat[e]

[the] terms of [Padilla’s] imprisonment” because he “ha[d] demonstrated through his conduct that

he’s really not deterred by a significant term of imprisonment.” App’x 55. The District Court also

noted that it “ha[d] no real hope that [Padilla was] not going to try to turn around and come right

back into the United States after any term of imprisonment that he serves,” id. at 56, but emphasized

that Padilla needed to “get the message” that he could not return to the United States, id.



3 Until today, we have only considered the amended version of U.S.S.G. § 5D1.1(c) in a non-precedential summary
order. See United States v. Garcia, No. 11-5321-cr, 2013 WL 309994, at *2 (2d Cir. Jan 28, 2013). In Garcia, we concluded
that the district court did not err in sentencing a deportable alien to a term of supervised release because the record
demonstrated that the district court “thought supervised release was necessary to provide added deterrence.” Id. We
agree with the reasoning of Garcia, which also reflected the practice of some of our sister Circuits, that “supervised
release is appropriate even under the new Guidelines if the district court finds that [added deterrence is necessary
because] a defendant is particularly likely to reenter the country illegally again in the future.” Id.; see also United States v.
Valdavinos-Torres, 704 F.3d 679, 693 (9th Cir. 2012); United States v. Dominguez-Alvarado, 695 F.3d 324, 329 (5th Cir. 2012);
United States v. Lawrence, 503 F. App’x 181 (3d Cir. 2012) (non-precedential summary order).
                                                                7
           We are mindful that Section 5D1.1(c) was not explicitly discussed at the sentencing hearing4

and that the District Court did not specifically state that supervised release (as opposed to Padilla’s

sentence generally) was designed to provide an additional measure of deterrence. Nevertheless, it is

clear that the District Court (1) was aware of the amended version of Section 5D1.1(c),5 (2)

considered Padilla’s specific circumstances and the Section 3553(a) factors,6 and (3) was convinced

that additional deterrence was needed. See App’x 55-59. The District Court then imposed a

sentence―including supervised release―based on its consideration of the Section 3553(a) factors and

its factual findings. In other words, the District Court properly calculated the Guidelines range,

treated the range as appropriately advisory, considered the Section 3553(a) factors, selected a

sentence based on facts that were not clearly erroneous, and adequately explained its chosen

sentence, which was in the Guidelines range. Robinson, 702 F.3d at 38. Nothing more was required.

Cf. United States v. Margiotti, 85 F.3d 100, 105 (2d Cir. 1996) (noting that, in the context of sentencing,

the “district court’s failure to expressly invoke [the specific Guidelines provision] or its

accompanying commentary cannot itself suggest that the court’s approach was in error”).

           In these circumstances, we conclude that the District Court did not err, much less plainly err,

in sentencing Padilla to, inter alia, a three-year term of supervised release.7 This conclusion is


4   As noted, Padilla did not object to the imposition of a term of supervised release before the District Court.
5 The Pre-Sentence Report referred to the amended version of Section 5D1.1(c), and the District Court adopted its
factual findings. See Padilla’s Br. 16; App’x 54.
6 At the sentencing hearing, the District Court specifically noted its consideration of the Section 3553(a) factors: “Now,
turning to the 3553(a) factors, most importantly in this case, there is a need for specific deterrence, and Mr. Padilla
Alvarado has demonstrated through his conduct that he’s really not deterred by a significant term of imprisonment.”
App’x 55.

7 As noted, when reviewing for plain error, we may correct an error not raised below “only where the appellant
demonstrates that (1) there is an error; (2) the error is clear or obvious . . . ; (3) the error affected the appellant’s
substantial rights . . . ; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Marcus, 130 S. Ct. at 2164; see also Zangari, 677 F.3d at 95. We recently explained that “[t]o be ‘plain,’ an
error must be so obvious that ‘the trial judge and prosecutor were derelict in countenancing it, even absent the
defendant’s timely assistance in detecting it.’” United States v. Wagner-Dano, 679 F.3d 83, 94 (2d Cir. 2012) (quoting United
States v. Frady, 456 U.S. 152, 163 (1982)).

                                                              8
supported by precedent from our Circuit, see United States v. Sero, 520 F.3d 187, 192 (2d Cir. 2008)

(rejecting a challenge to a “‘seemingly automatic,’ ‘errant,’ and ‘unreasonable’ term of supervised

release” where “the district court clearly articulated its consideration of the § 3553(a) factors and

carefully considered whether the Guidelines sentence it imposed would be appropriate”), as well as

the Fifth Circuit’s recent decision in Dominguez-Alvarado. There, the Fifth Circuit specifically

concluded that a district court’s failure to refer to Section 5D1.1(c) in sentencing a deportable alien

to a term of supervised release “d[id] not constitute error, plain or otherwise” because the district

court stated that “[it] gave the sentence after looking at the factors in 3553(a), to deter future

criminal conduct, [and based on] [the defendant’s] particular background and characteristics, which

apparently do not make him a welcome visitor to this country.” Dominguez-Alvarado, 695 F.3d at

329-30 (internal quotation marks omitted). It also noted that “[e]ven when an objection is voiced

under § 5D1.1(c), this [type of] particularized explanation and concern would justify [the] imposition

of a term of supervised release.” Id. at 330. We agree.

                                                    D.

        Moreover, even assuming arguendo that the District Court did not adequately explain its

reasons for imposing supervised release―a proposition we reject―Padilla’s criminal record

demonstrates that supervised release “would provide an added measure of deterrence and protection

based on the facts and circumstances of [this] particular case.” U.S.S.G. § 5D1.1, cmt. n.5.

Accordingly, like the Fifth Circuit―which has considered a virtually identical situation―we conclude

that the District Court did not commit plain error here because the alleged error did not affect

Padilla’s substantial rights, since it is clear that it did not affect the outcome of the sentencing

proceeding. See United States v. Cancino-Trinidad, 710 F.3d 601, 607 (5th Cir. 2013) (concluding that a

district court did not plainly err where a defendant’s “criminal record support[ed] a finding that the

imposition of [supervised release] would provide an added measure of deterrence and protection”

                                                     9
such that the alleged error “did not affect [the defendant’s] substantial rights” (internal quotation

marks omitted)); see also Marcus, 130 S. Ct. at 2164 (explaining that, in order for an error to affect a

defendant’s “substantial rights,” “there must be a reasonable probability that the error affected the

outcome of the trial” (emphasis supplied)).8

                                                    CONCLUSION

         To summarize, we hold that:

         (1)       Although imposing a term of supervised release on an “alien who likely will be

                   deported after imprisonment” is “ordinarily” discouraged under U.S.S.G. § 5D1.1(c),

                   imposing a term of supervised release on such a defendant does not constitute a

                   departure from the Guidelines if a district court determines that “an added measure

                   of deterrence and protection” is appropriate “based on the facts and circumstances

                   of a particular case,” U.S.S.G. § 5D1.1, cmt. n.5.

         (2)       The District Court determined that “an added measure of deterrence and

                   protection” was needed in Padilla’s case, and therefore it adequately explained why it

                   sentenced Padilla to a term of supervised release.

         (3)       Even assuming arguendo that the District Court erred by not adequately explaining its

                   reasons for imposing a term of supervised release on Padilla, in the circumstances

                   presented here it did not “plainly err” because that alleged error did not affect

                   Padilla’s substantial rights. Inasmuch as Padilla’s criminal record demonstrates that

                   supervised release “would provide an added measure of deterrence and protection,”

                   there is no reasonable probability that the result of the proceeding would have been

                   different in the absence of the supposed error.

8 Finally, even assuming that any alleged error affected Padilla’s substantial rights, we would not regard it as prudent, in
these circumstances, to exercise our discretion and remand for resentencing, for the simple reason that any alleged error
did not “seriously affect the fairness, integrity or public reputation of judicial proceedings.” Johnson v. United States, 520
U.S. 461, 470 (1997).
                                                              10
    For the reasons stated, the June 19, 2012 judgment of conviction of the District Court is

AFFIRMED.




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