     Case: 12-40006       Document: 00512196303         Page: 1     Date Filed: 04/03/2013




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

                                                                            FILED
                                                                            April 3, 2013

                                       No. 12-40006                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

MARGARITO CHAVEZ-TREJO,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:11-cr-1021


Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Margarito Chavez-Trejo, a citizen of Mexico, pleaded
guilty to illegal reentry following deportation in violation of 8 U.S.C. § 1326. The
presentence report (“PSR”), prepared on November 3, 2011, and applying the
2011 edition of the Sentencing Guidelines, calculated his total offense level to be
22 with a criminal history category of III, resulting in a recommended
Sentencing Guidelines range of 51 to 63 months.
       Effective November 1, 2011, Guidelines § 5D1.1, “Imposition of a Term of

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Supervised Release,” was amended to add subsection (c), which provides: “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.” U.S.S.G.
§ 5D1.1(c) (2011). The commentary accompanying § 5D1.1(c) states:
       Application of Subsection (c). —In a case in which the defendant is
       a deportable alien specified in subsection (c) and supervised release
       is not required by statute, the court ordinarily should not impose a
       term of supervised release. Unless such a defendant legally returns
       to the United States, supervised release is unnecessary. If such a
       defendant illegally returns to the United States, the need to afford
       adequate deterrence and protect the public ordinarily is adequately
       served by a new prosecution. The court should, however, 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.
U.S.S.G. § 5D1.1 cmt. n.5.1
       Although the PSR contained an accurate recitation of § 5D1.1, in the
immediately preceding paragraph, the PSR also advised:
       Guideline Provisions: The guideline range for a term of
       supervised release is at least 1 year but not more than 3 years,
       pursuant to U.S.S.G. § 5D1.2(a)(2). If a sentence of imprisonment
       of 1 year or less is imposed, a term of supervised release is not
       required but is optional, pursuant to U.S.S.G. § 5131.1(b).
       Supervised release is required if the Court imposes a term of
       imprisonment of more than 1 year, pursuant to U.S.S.G. § 5D1.1(a).
       This was an inaccurate summary of § 5D1.1, which further provides that
“[t]he court shall order a term of supervised release to follow imprisonment . . .
except as provided in subsection (c).” U.S.S.G. § 5D1.1(a)(2) (emphasis added).



       1
         Guidelines commentary is equivalent in force to the Guidelines language itself as long
as the language and the commentary are not inconsistent. United States v. Rayo-Valdez, 302
F.3d 314, 318 n.5 (5th Cir. 2002) (citing Stinson v. United States, 508 U.S. 36, 42–43 (1993)).

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The PSR thus incorrectly listed the applicable Guidelines range for supervised
release as a mandatory term of at least one year, but not more than three years.
      Chavez-Trejo did not file objections to the PSR but requested a downward
variance from the Guidelines range.             The district court imposed a
below-Guidelines sentence of 40 months of imprisonment. It also imposed three
years of supervised release. In discussing its imposition of a term of supervised
release, the district court made the following remarks:
      THE COURT: I’m going to sentence you to 40 months, Mr.
      Chavez-Trejo. Hopefully -- well, you’ve been through this before.
      Hopefully, you will not serve the full amount of time. I doubt you
      served -- I doubt you served a full 50 months back in 2004. Because
      you’re entitled to get credit for good behavior and you will get credit
      for the time you’ve been with us. You’ve already been with us five
      months.
      But when you get out, you’ll be put on supervised release again.
      You’ve been through this again, but -- it’s a requirement of the law,
      but it also -- we cannot supervise you anyway. Because you’re
      supposed to be in Mexico and we cannot supervise you in Mexico.
      So if you stay there like you’re supposed to, it doesn’t mean a thing.
      But if we see you again in this country, whether it’s to visit the first
      family, or some other family, or just to shop, or pray, or whatever,
      the minute you step foot here, you’re committing a crime again. So
      if you’re caught in the first three years after you get out, you’ll get
      new charges, plus two more years in this case.
      But even if you wait three years, you’ll always be facing the new
      charges. You don’t have papers. Just looking at this, it’s not likely
      you’re ever going to get real papers, valid papers. And so you just
      need to -- no matter what kind of excuses or problems you think you
      have in Mexico, the best advice I can give you is go South. Go to the
      interior of Mexico, or go to Central America, or go to Brazil, or
      somewhere. But don’t come here. Because you’re just announcing
      that you would like to go back to prison again.




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       On appeal, Chavez-Trejo argues that the district court procedurally and
substantively plainly erred in imposing a term of supervised release.2 Plain
error review requires determining whether (1) there was error; (2) it was plain
or obvious; (3) the error affected the defendant’s substantial rights; and (4) this
court should exercise its discretion to correct the error in order to prevent a
manifest miscarriage of justice. United States v. Olano, 507 U.S. 725, 732–37
(1993); see United States v. Infante, 404 F.3d 376, 394 (5th Cir. 2005). This court
retains discretion to correct reversible plain error, but will do so “only if the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Puckett v. United States, 556 U.S. 129, 135 (2009) (internal
quotation marks and alterations omitted).
       The district court’s statement that supervised release was “a requirement
of the law” was error that was both clear and obvious. See United States v.
Blocker, 612 F.3d 413, 416 (5th Cir. 2010) (per curiam); see also United States v.
Martinez-Berrios, No. 12-40041, 2012 WL 6634605, at *1 (5th Cir. Dec. 21, 2012)
(per curiam) (unpublished) (error was clear or obvious where there was “no
indication that the district court accounted for or considered § 5D1.1(c)”).
       Whether this error affected Chavez-Trejo’s substantial rights is a closer
question. The government points to Chavez-Trejo’s criminal history and two
prior deportations and argues that, to the extent there was plain error, the error
did not “increase[] the term of a sentence, such that there is a reasonable
probability of a lower sentence on remand.” United States v. Garcia-Quintanilla,
574 F.3d 295, 304 (5th Cir. 2009). The government further argues that the
sentencing transcript reveals that the district court imposed a term of



       2
         Chavez-Trejo also contends that the district court plainly erred by not giving notice
before departing from the Guidelines, but concedes in his reply brief that this argument is
foreclosed by our intervening decision in United States v. Dominguez-Alvarado, 695 F.3d 324,
329 (5th Cir. 2012).

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                                   No. 12-40006

supervised release because it believed doing so “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.
       We understand these arguments to be related. To the extent the district
court acted out of a desire to deter Chavez-Trejo, it is less likely that the district
court would impose a lower sentence on remand. Conversely, the case for
remand becomes stronger if the district court’s sentence was based on factors it
considered only because of an erroneous understanding of the Guidelines. We
look, then, at the sentence imposed and at the district court’s reasoning in
imposing its sentence.
       We note, first, that the district court imposed a below-Guidelines sentence.
In so doing, the district court identified multiple grounds for leniency, including,
inter alia, that Chavez-Trejo “[is] the father of six children” who are U.S.
citizens.    This suggests that a remand to resentence under a correct
understanding of § 5D1.1 might result in a sentence without supervised release.
       Next, we observe that the one ground under § 5D1.1(c) that would justify
the imposition of supervised release—deterrence—is not clearly in evidence. See
U.S.S.G. § 5D1.1 cmt. n.5. The district court did not so much as mention
§ 5D1.1. While we have upheld sentences in numerous cases in which the
district court failed to discuss § 5D1.1, we did so because the courts based their
imposition of supervised release on deterring future conduct. See, e.g., United
States v. Lara-Espinoza, 488 F. App’x 833, 835 (5th Cir. 2012) (per curiam)
(unpublished) (“[I]t is in [the] strong societal interest to deter individuals who
engaged in the kind of crime that you were convicted of . . . .”); Dominguez-
Alvarado, 695 F.3d at 330 (“I gave the sentence . . . to deter future criminal
conduct . . . .”).
       By contrast, here the district court did not explicitly discuss deterrence.
Instead, in speaking to Chavez-Trejo, it observed that “we cannot supervise you

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                                       No. 12-40006

anyway.” Possibly in a deterrence vein, the district court warned Chavez-Trejo
that “if we see you again in this country . . . . in the first three years after you get
out, you’ll get new charges, plus two more years in this case.” Having read,
indeed pored over, the entire colloquy, it is simply unclear whether deterrence
motivated the imposition of supervised release or whether, instead, it was driven
by a mistake as to § 5D1.1. See, e.g., United States v. Reyes-Serna, Nos. 11-
41241, 11-41242, 2013 WL 323068, at *1 (5th Cir. Jan. 28, 2013) (per curiam)
(unpublished) (district court’s statements that sentence was “necessary to
protect the public,” and that defendant “was not welcome in the United States,”
were “sufficient to justify the imposition of supervised release”). Hence, we
assume, without deciding, that the plain error did affect Chavez-Trejo’s
substantial rights.3
       On the assumption that Chavez-Trejo has demonstrated a “reasonable
probability that, but for the district court’s misapplication of the Guidelines, he
would have received a lesser sentence,” Blocker, 612 F.3d at 416 (internal
quotation marks omitted), we nevertheless decline to exercise our discretion to
correct the plain error because the error does not “seriously affect[] the integrity
and fundamental fairness of judicial proceedings,” Garcia-Quintanilla, 574 F.3d
at 304.     “[E]ven if an increase in a sentence [can] be seen as inevitably
‘substantial’ in one sense it does not inevitably affect the fairness, integrity, or
public reputation of judicial process and proceedings.” United States v. Ellis, 564
F.3d 370, 378–79 (5th Cir. 2009); see also United States v. Davis, 602 F.3d 643,

       3
          We recognize that this court recently found that a district court’s consideration of
deterrence is sufficient to remedy ignorance of §5D1.1(c) if the district judge’s comments
“indicate implicit consideration of the deterrent effect of [supervised release].” United States
v. Cancino-Trinidad, 11-41344, 2013 WL 869047 (5th Cir. Mar. 8, 2013) (emphasis added).
In Cancino-Trinidad, however, the sentencing court expressly stated that it was “trying to
keep [the defendant] from coming back,” id. at *3, whereas here the district court only warned
Chavez-Trejo of the effect of supervised release should he illegally reenter the country. The
district court never suggested that it was imposing supervised release because of those effects.
Instead, it described supervised release as “a requirement of the law.”

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                                   No. 12-40006

652 (5th Cir. 2010) (plain error test “requires both a showing of effect on the
appellant’s substantial rights and an effect on the fairness or integrity of the
proceedings before this court may exercise its discretion to remedy the error”).
      Chavez-Trejo does not explain why a decision not to exercise our discretion
in this case would seriously affect the fairness, integrity, or public reputation of
judicial proceedings. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993)
(issues not adequately briefed are abandoned); United States v. Garcia-Lemus,
No. 12-40353, 2013 WL 323080, at *1 (5th Cir. Jan. 28, 2013) (per curiam)
(unpublished) (no plain error shown where defendant made “no attempt to
demonstrate why [the failure to explain reasons for imposing supervised
release] . . . would seriously affect the fairness, integrity, or public reputation of
judicial proceedings”). Whether supervised release is imposed or not also does
not now impact Chavez-Trejo himself and it may never do so. As the district
court observed in sentencing Chavez-Trejo, “you’re supposed to be in Mexico and
we cannot supervise you in Mexico. So if you stay there like you’re supposed to,
[supervised release] doesn’t mean a thing.” See United States v. Navarrete-
Rembao, No. 12-40252, 2013 WL 220776, at *1 (5th Cir. Jan. 21, 2013) (per
curiam) (unpublished) (“If [defendant] is deported again, supervised release will
have no practical effect on him.”). Chavez-Trejo also affirmed that “[t]his is the
last time. I’m not going to come back. I already have another family in Mexico.”
We thus are unpersuaded that the district court’s procedural plain error in this
case affects the fairness, integrity, or public reputation of judicial proceedings
such that remand is warranted. See United States v. Jones, 489 F.3d 679, 682
(5th Cir. 2007) (assuming there was reasonable probability that sentence would
be decreased on remand, but finding that sentencing error did not seriously
affect fairness, integrity, or public reputation of judicial proceedings where
district court exercised diligent effort at sentencing hearing, notwithstanding its
unnecessary discussion of defendant’s arrest record).

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      We also are unpersuaded by Chavez-Trejo’s argument that his sentence
was substantively unreasonable because “the sentence does not account for a
factor that should receive significant weight,” United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009)—here, the Guidelines’ recommendation that “ordinarily”
a term of supervised release should not be imposed on deportable aliens.
Because the three-year term of supervised release was within the recommended
Guidelines range, it is presumed reasonable, see United States v. Alonzo, 435
F.3d 551, 554 (5th Cir. 2006), and we infer that the district court considered all
pertinent sentencing considerations, see United States v. Mares, 402 F.3d 511,
519 (5th Cir. 2005). Chavez-Trejo has not overcome that presumption and, as
discussed above, we also do not view this case as implicating the fairness and
integrity of judicial proceedings.
      For the foregoing reasons, we AFFIRM the sentence.




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