    Case: 11-41344    Document: 00512168836      Page: 1   Date Filed: 03/08/2013




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

                                                                   FILED
                                                                  March 8, 2013
                                 No. 11-41344
                                                                  Lyle W. Cayce
                                                                       Clerk



UNITED STATES OF AMERICA

                                            Plaintiff-Appellee,

versus

ARTURO CANCINO-TRINIDAD,

                                            Defendant-Appellant.




                 Appeal from the United States District Court
                      for the Southern District of Texas




Before STEWART, Chief Judge, SMITH and WIENER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:


      Arturo Cancino-Trinidad pleaded guilty to illegal re-entry. On appeal, he
asserts that the imposition of a three-year term of supervised release (“SR”) was
procedurally and substantively unreasonable. We affirm.


                                       I.
      Cancino-Trinidad, an illegal alien, has been arrested in the United States
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                                      No. 11-41344

about four dozen times since 1986. According to the presentence investigation
report (“PSR”), his criminal record includes twenty-eight convictions and four
outstanding warrants, including a 1992 conviction of the aggravated felony of
uttering a forged instrument. He was deported in February or March 2011 and
was re-arrested in Brownsville, Texas, less than three months later.
      Cancino-Trinidad pleaded guilty, without a plea agreement, to having been
found unlawfully present in the United States after removal following an aggra-
vated felony conviction, in violation of 8 U.S.C. § 1326. The district court sen-
tenced him to thirty-two months’ imprisonment, three years’ SR, and a $100 spe-
cial assessment, which was remitted on motion of the government.
      Sentencing occurred on December 6, 2011. The PSR, adopted by the dis-
trict court “without change,” had last been revised on October 12, 2011, and pro-
vided, in part, that “[t]he guideline range for a term of [SR] is at least two (2)
years but not more than three (3) years. . . . [SR] is required if the Court imposes
a term of imprisonment of more than one (1) year.” Effective November 1, 2011
—more than a month before the sentencing—U.S.S.G. § 5D1.1 was amended to
add subsection (c): “The court ordinarily should not impose a term of [SR] in a
case in which [SR] is not required by statute and the defendant is a deportable
alien who likely will be deported after imprisonment.”1

      1
          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 [SR] is not required by statute, the court
      ordinarily should not impose a term of [SR]. Unless such a defendant legally
      returns to the United States, [SR] 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 [SR] on such a defendant if the
                                                                                (continued...)

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                                     No. 11-41344

       At sentencing, the government stated that “the new range of [SR] release
is one to three years.” The PSR, however, was not modified to reflect the new
range, and neither the district court nor the government evinced an awareness
that the amended guideline rendered the imposition of SR discretionary.
Cancino-Trinidad timely appeals his sentence based on the imposition of SR.


                                           II.
       We generally review sentences for abuse of discretion. See Gall v. United
States, 552 U.S. 38, 51 (2007); United States v. Cisneros–Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008). First, we
       ensure that the district court committed no significant procedural
       error, such as failing to calculate (or improperly calculating) the
       Guidelines range, treating the Guidelines as mandatory, failing to
       consider the [18 U.S.C.] § 3553(a) 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.

Gall, 552 U.S. at 51; United States v. Dominguez-Alvarado, 695 F.3d 324, 327
(5th Cir. 2012). If the sentencing decision is “procedurally sound,” we “then con-
sider the substantive reasonableness of the sentence. . . .” Gall, 552 U.S. at 51;
Dominguez-Alvarado, 695 F.3d at 327. As Cancino-Trinidad concedes, however,
our review is limited to plain error, because he did not challenge the procedural




       1
         (...continued)
       court determines it would provide an added measure of deterrence and protec-
       tion based on the facts and circumstances of a particular case.

U.S.S.G. § 5D1.1, cmt. (n.5).

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                                       No. 11-41344

or substantive reasonableness of SR in the district court.2
           Plain error review requires four determinations: whether there
       was error at all; whether it was plain or obvious; whether the error
       affected the defendant’s substantial rights; and whether 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); United States v. Infante, 404 F.3d 376, 394
       (5th Cir. 2005). This court retains discretion to correct reversible
       plain error and will do so “only if the error seriously affects the fair-
       ness, integrity, or public reputation of judicial proceedings.” Puckett
       [], 556 U.S. [at] . . . 135 . . . .

Dominguez-Alvarado, 695 F.3d at 328.

                                             III.
       Even when reviewing sentences for plain error, we generally conduct a
bifurcated analysis.3 But, because it bears on both procedural and substantive
unreasonableness, we first consider Cancino-Trinidad’s contention that the
imposition of three years’ SR constitutes an upward departure under § 5D1.1(c).
This argument is foreclosed by circuit precedent.4

       [I]n order to avoid rendering the word “ordinarily” superfluous, we
       interpret the Guidelines use of the word “ordinarily” in § 5D1.1 and
       the accompanying commentary as advising a sentencing court that

       2
        See Puckett v. United States, 556 U.S. 129, 135 (2009); United States v. Mudekunye,
646 F.3d 281, 287 (5th Cir. 2011) (per curiam).
       3
         See, e.g., United States v. De La Rosa-Rangel, No. 11-41406, 2013 WL 323070, at *1
(5th Cir. Jan. 28, 2013) (per curiam).
       4
         See Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir.1999) (“It is a firm
rule of this circuit that in the absence of an intervening contrary or superseding decision by
this court sitting en banc or by the United States Supreme Court, a panel cannot overrule a
prior panel’s decision.”).

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                                  No. 11-41344

      for most deportable aliens, imposing [SR] is unnecessary because
      the deterrent and protective effect of [SR] is adequately served by
      the possibility of a new future prosecution for illegal reentry, while
      still leaving within the discretion of the sentencing court the option
      of imposing [SR] in uncommon cases where added deterrence and
      protection are needed. The word “ordinarily” is hortatory, not man-
      datory, in this provision. As to any defendant specified in subsec-
      tion (c), the statutory [SR] range is zero to three years, 18 U.S.C.
      § 3583(b)(2), and the amended Guidelines range . . . is one to three
      years, should a sentencing court elect to impose a term of [SR].
      Here, the district court imposed three years. No departure analysis
      is triggered . . . .

Dominguez-Alvarado, 695 F.3d at 329 (footnote omitted).
      As the government noted at Cancino-Trinidad’s sentencing, the range for
SR under the amended guideline was one to three years. The imposition of a
term within that range was not a departure, and we analyze the reasonableness
of the sentence with that in mind.


                                       A.
      With respect to procedural unreasonableness, “[t]he district court must
adequately explain the sentence ‘to allow for meaningful appellate review and
to promote the perception of fair sentencing.’” United States v. Mondragon-
Santiago, 564 F.3d 357, 360 (5th Cir. 2009) (quoting Gall, 552 U.S. at 50). “When
the judge exercises her discretion to impose a sentence within the Guideline
range and states for the record that she is doing so, little explanation is
required.” United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). When
§ 5D1.1(c) applies, SR “should not be imposed absent a determination that [SR]
would provide an added measure of deterrence and protection based on the facts
and circumstances of a particular case.” Dominguez-Alvarado, 695 F.3d at 329.

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                                        No. 11-41344

       When evaluating procedural reasonableness, “[w]e infer that the district
court considered all pertinent sentencing considerations in imposing the sen-
tence.”5 A district court’s adoption of a PSR generally supports that inference.
See Reyes-Serna, 2013 WL 323068, at *1. Here, however, the court adopted a
PSR that had not been updated to reflect the addition of § 5D1.1(c). Contra id.
It was therefore error to impose SR with reference to an outdated version of the
guideline that characterized SR as “mandatory.”6 Moreover, the “application of
the wrong Guidelines section was error that is clear or obvious.”7
       “An error that is plain, though, is not enough.” Blocker, 612 F.3d at 416.
Cancino-Trinidad may prevail on plain-error review only if the mistake “affected
[his] substantial rights, . . . ‘affected the outcome of the district court proceed-
ings.’”8 “A sentencing error affects a defendant’s substantial rights if he can
show a reasonable probability that, but for the district court’s misapplication of
the Guidelines, he would have received a lesser sentence.” Mudekunye, 646 F.3d
at 289 (citing Blocker, 612 F.3d at 416–17). On plain-error review, the appellant
has the burden of showing an error affected substantial rights. See Mares, 402


       5
        United States v. Reyes-Serna, No. 11-41241, 2013 WL 323068, at *1 (5th Cir. Jan. 28,
2013) (per curiam) (unpublished) (citing Mares, 402 F.3d at 519).
       6
         See United States v. Martin, 596 F.3d 284, 286 (5th Cir. 2010) (“[T]he district court
is to sentence under the guidelines in effect at the time of sentencing. . . .”) (citing 18 U.S.C.
§ 3553(a)(4)(A)(ii)); Dominguez-Alvarado, 695 F.3d at 329.
       7
         United States v. Lara-Espinoza, 488 F. App’x 833, 835 (5th Cir. 2012) (per curiam)
(citing United States v. Gaither, 434 F. App’x. 393, 393–94 (5th Cir. 2011) (per curiam)); see
also United States v. Blocker, 612 F.3d 413, 416 (5th Cir. 2010) (“As our conclusion is reached
by a straightforward application of the guidelines, the error was also plain.”) (citing United
States v. Rodriguez-Parra, 581 F.3d 227, 231 (5th Cir.2009)).
       8
        Puckett, 556 U.S. at 135 (quoting Olano, 507 U.S. at 736); see also United States v.
John, 597 F.3d 263, 284–85 (5th Cir. 2010).

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                                       No. 11-41344

F.3d at 521 (citing Olano, 507 U.S. at 734).
       Cancino-Trinidad asserts that “there is at least a reasonable probability
that, upon reconsideration, the district court would decline to impose a [SR]
term” because, among other things, “the imposition of a term of [SR] . . . simply
resulted from the district court’s overlooking the recent change in the Guidelines
recommending no [SR] for persons like [] Cancino-Trinidad.” Our opinion in
Lara-Espinoza, 2012 WL 3984421, at *1, though unpublished, provides persuas-
ive authority that the court’s unfamiliarity with the amended guidelines is not
dispositive: We concluded that a similar error
       did not affect Lara-Espinoza’s substantial rights because at sentenc-
       ing, the district court conducted the factual consideration of whether
       the imposition of supervised release ‘would provide an added mea-
       sure of deterrence and protection based on the facts and circum-
       stances of a particular case’ in accordance the amended Guidelines
       commentary accompanying § 5D.1.1.

Id. (quoting § 5D1.1, cmt. (n.5)).
       At sentencing, the court told Cancino-Trinidad that “I’m trying to keep you
from coming back here because I know what’s going to happen if you do. . . .” The
court noted that the imposition of SR would result in greater criminal penalties
should Cancino-Trinidad illegally re-enter the United States after completing his
prison sentence. Though less explicit than the statement at issue in Lara-
Espinoza, the court’s comments indicate implicit consideration of the deterrent
effect of SR.9 Moreover, as described above, Cancino-Trinidad’s criminal history


       9
          Accord Lara-Espinoza, 488 F. App’x at 835; United States v. Martinez-Berrios, No.
12-40041, 2012 WL 6634605, at *1 (5th Cir. Dec. 21, 2012) (per curiam) (unpublished) (“The
district court’s particularized statements concerning Martinez’s history of repeated immigra-
tion violations, though brief, were adequate to explain why a [SR] term was appropriate to pro-
                                                                                 (continued...)

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                                       No. 11-41344

includes four dozen arrests, twenty-eight convictions, four outstanding warrants,
and an illegal re-entry less than three months after deportation.
       Even assuming that the district court did not previously conduct the fac-
tual consideration described in § 5D1.1, cmt. (n.5), Cancino-Trinidad’s criminal
record supports a finding that the imposition of SR “would provide an added
measure of deterrence and protection based on the facts and circumstances of
[this] particular case.” Because Cancino-Trinidad has “raise[d] a ‘possibility’ of
a different result, but not the requisite ‘probability,’”10 the error did not affect his
substantial rights.11


                                              B.
       We next consider Cancino-Trinidad’s claim of substantive unreasonable-
ness. “One basis for error in a defendant’s sentence is failure by the district
court to account for a factor that should receive significant weight. Martinez-
Berrios, 2012 WL 6634605, at*1 (citing United States v. Cooks, 589 F.3d 173, 186
(5th Cir.2009)). Cancino-Trinidad contends that the court did not even consider,
much less “account for” or give “significant weight” to, the advice in § 5D1.1(c)
that deportable aliens should “ordinarily” not be sentenced to terms of SR. The
court, however, imposed a term of SR that was within the applicable guideline

       9
         (...continued)
vide ‘an added measure of deterrence and protection’ in his case.”) (citing § 5D1.1, comment.
(n.5); Dominguez–Alvarado, 695 F.3d at 328–30).
       10
          Blocker, 612 F.3d at 417 (quoting United States v. Cruz-Meza, 310 F. App’x 634, 637
(5th Cir. 2009) (per curiam)).
       11
          Even had Cancino-Trinidad shown that the error affected his substantial rights, “this
is not an instance meriting our exercising our discretion to remand for resentencing.” Gaither,
434 F. App’x at 394.

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                                       No. 11-41344

range of one to three years. We “ordinarily appl[y] a presumption of reasonable-
ness to within-guidelines sentences.”12 Cancino-Trinidad offers no compelling
rebuttal of that presumption,13 so we determine that the sentence was not sub-
stantively unreasonable: The length of the SRSSthree yearsSSwas not itself
error, to say nothing of plain error.14
       The judgment of sentence is AFFIRMED.




       12
         United State v. Pena-Gomez, 321 F. App’x 348, 350 (5th Cir. 2009) (unpublished) (cit-
ing United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); United States v.
Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008)); see also Rita v. United States, 551 U.S.
338, 347 (2007).
       13
        To the contrary, at sentencing, the court expressed “amaze[ment] that the govern-
ment had not moved to have the court consider a sentence higher than the guideline range”
(emphasis added).
       14
         See De La Rosa-Rangel, 2013 WL 323070, at *1 (determining that imposition of SR,
even though the court had failed to account for § 5D1.1(c), was not substantively unreasonable
under plain-error review).

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