     Case: 12-40302    Document: 00512108699       Page: 1   Date Filed: 01/10/2013




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

                                                                       FILED
                                                                     January 10, 2013
                                  No. 12-40302
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee

v.

FERNANDO FRAGA,

                                              Defendant - Appellant


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


Before HIGGINBOTHAM, SMITH, and ELROD, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      The defendant appeals his 27-month prison sentence and lifetime term of
supervised release following a guilty plea to failing to register as a sex offender,
in violation of 18 U.S.C. § 2250(a). He contends that his sentence was both
procedurally and substantively unreasonable. We AFFIRM in part, and we
VACATE and REMAND in part.


                                         I.
      On January 4, 1994, Fernando Fraga was convicted of sexual assault in
Wisconsin and sentenced to three years of probation. As a result of that
conviction, Fraga was required to register as a sex offender until March 14,
2016. On June 13, 2011, a deputy with the United States Marshals Service
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learned that Fraga was residing in Aransas Pass, Texas, and that he had not
registered as a sex offender. The Deputy U.S. Marshal confirmed that Fraga
had been living in Texas without registering as a sex offender. Fraga was
arrested and charged with one count of failing to register as a sex offender, in
violation of 18 U.S.C. § 2250(a).
      On August 18, 2011, Fraga pled guilty, pursuant to a plea agreement, to
one count of failing to register as a sex offender in violation of 18 U.S.C.
§ 2250(a). At the time of his guilty plea, Fraga admitted that he had lived in
Texas since April 2009, without registering, and that he knew he was supposed
to register as a sex offender but did not do so. In the written plea agreement, the
Government agreed (1) to recommend that Fraga receive maximum credit for
acceptance of responsibility and a sentence of imprisonment within the
applicable guideline range and (2) to recommend a reduction in Fraga’s sentence
if Fraga provided substantial assistance to the Government.
      The amended Presentence Investigation Report (“PSR”) calculated a base
level of 14, reduced by two levels for acceptance of responsibility, resulting in a
total offense level of 12 as well as a criminal history category of II. It indicated
a guideline range of 12 to 18 months of imprisonment and a supervised release
term of five years to life. The PSR included a detailed account of Fraga’s
criminal history, which, in addition to the 1994 conviction for sexually assaulting
a 14-year-old girl, includes nine prior convictions. With respect to the conviction
that formed the basis of Fraga’s duty to register, the PSR showed that in 1994,
at the age of 18, Fraga was found guilty of sexually assaulting a 14-year-old girl,
although he claimed she told him she was 16 years old. He was convicted of
sexual assault and sentenced to three years of probation. His probation was
revoked in 1996, and he was sentenced to serve one year in prison, followed by
four years of intensive sanctions, and he was required to register as a sex
offender until March 14, 2016. In addition, between 1991 and 2007, Fraga was
convicted of battery, disorderly conduct (on four occasions), burglary and theft,

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operating a vehicle without carrying a license, and operating a vehicle under the
influence. Two of those disorderly conduct violations involved assaults on
women, as did the 1994 conviction for sexual assault of a minor.
      Moreover, the PSR contained accounts of other abusive conduct, directed
at women, that had not resulted in a conviction. In particular, it indicated an
allegation of assault in September 1999, an allegation of sexual assault in
August 2002, and another allegation of assault in August 2002. The two August
2002 allegations were made by the same woman. As a result of the incident in
September 1999, Fraga was charged with Disorderly Conduct-Domestic
Violence. As a result of the two incidents in August 2002, Fraga was charged
with Second Degree Sexual Assault/Use Force and Disorderly Conduct-Habitual
Criminality. All three cases were dismissed for unknown reasons. In interviews
with the probation officer, both women apparently indicated that they dropped
the charges at the urging of Fraga’s family. The probation officer also reported
an additional allegation of domestic violence in November 2010. That woman
ultimately decided not to file charges against Fraga, and the case was closed.
      Despite the detailed criminal history contained in the PSR, Fraga was only
assessed two criminal history points—one for disorderly conduct/domestic abuse
and one for operating under the influence—due to the age of the other
convictions. As such, in the PSR, the probation officer noted that an upward
departure may be warranted.        Specifically, she explained that U.S.S.G.
§ 4A1.3(a)(1) provides for an upward departure if “reliable information indicates
that the defendant’s criminal history category substantially under-represents
the seriousness of the defendant’s criminal history or the likelihood that the
defendant will commit other crimes.” In addition, the probation officer noted
that U.S.S.G. § 5K1.1 provides for an “encouraged” downward departure should
Fraga provide substantial assistance to the Government.
      The probation officer ultimately recommended that Fraga be sentenced to
a 27-month term of imprisonment, a lifetime term of supervised release, and be

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assessed a $100 special assessment. The probation officer reasoned that Fraga’s
criminal history score under-represented his criminal history and found Fraga’s
“continued pattern of alcohol abuse, domestic violence, and sexual assault”
concerning. As such, she found an upward departure to a 27-month term of
imprisonment was warranted to protect the public and deter future criminal
acts. Moreover, she recommended a lifetime of supervised release in order to
ensure Fraga registered as a sex offender, and because Fraga’s offense of
conviction was a sex offense.
      At Fraga’s sentencing hearing, the parties agreed that Fraga had an
offense level of 12 and a criminal history category of II, such that the applicable
guidelines sentencing range was 12 to 18 months with five years to a lifetime of
supervised release, a $3,000 to $30,000 fine, and a $100 special assessment. The
sentencing judge gave Fraga an opportunity to present his objections to the PSR.
Specifically, Fraga denied the 1999 allegation of assault, the 2002 allegation of
sexual assault, and the 2002 allegation of assault. The sentencing judge listened
to Fraga’s explanation, received evidence, and questioned Fraga about his
version of the events. The probation officer testified that she had interviewed
the two victims and they maintained that the statements they gave to the police
were true and accurate.         The sentencing judge once again returned to
considering Fraga’s version of the events; only then did she deny Fraga’s
objections to the PSR.
      Pursuant to the written plea agreement, the prosecutor pointed out that
Fraga had been willing to cooperate with the Government in prosecuting a child
pornography production case. Although Fraga had agreed to testify against the
defendant in that case, his testimony was ultimately unnecessary.           Thus,
although the prosecutor could not move for a downward departure based on
substantial assistance, he requested that the sentencing judge consider Fraga’s
willingness to cooperate and recommended a sentence at the low end of the
Guidelines range. The sentencing judge responded that she was considering an

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upward departure, as recommended by the probation officer, but once again gave
Fraga an opportunity to explain why a shorter sentence might be appropriate.
Fraga’s counsel mentioned Fraga’s recent engagement and employment, in
addition to his acceptance of responsibility. Fraga added that he wanted to
apologize to his fiancee and daughter. The sentencing judge questioned Fraga
about his compliance with his child support obligations.          Although Fraga
indicated that he had paid some child support, the probation officer explained
that Fraga owed between $4,000 and $8,000 in child support payments and did
not appear to be supporting the child; the sentencing judge gave Fraga an
opportunity to explain. Fraga also apologized for failing to register as a sex
offender. The sentencing judge then asked Fraga about whether his fiancee
knew of his criminal history. Fraga testified that he told her soon after he met
her, and the probation officer added that Fraga had allegedly assaulted the
woman who was now his fiancee in 2010. The sentencing judge explained that
she was having difficulty fashioning a sentence that would deter Fraga’s future
criminal conduct and protect the public, given Fraga’s extensive history of
assault. She once again gave Fraga an opportunity to speak. Fraga apologized
and argued that he had already been punished for his prior offenses.
      The sentencing judge ultimately sentenced Fraga to a 27-month term of
imprisonment, followed by a lifetime of supervised release. In doing so, she
imposed an upward variance of nine months, under 18 U.S.C. § 3553(a), above
the Guideline range of 12 to 18 months. The sentencing judge noted that she
“[didn’t] even know if that’s high enough to deter [Fraga’s] future criminal
conduct, and to protect the public, which is of vital concern to this Court.” In her
statement of reasons, the sentencing judge explained that “[t]he Court took into
consideration the need to deter future criminal conduct and the need to protect
the public, in light of the defendant’s history of assaultive and sexually
assaultive behavior” and noted that the sentence was based on (1) the nature
and circumstances of the offense and history and characteristics of the defendant

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                                        No. 12-40302

(under § 3553(a)(1)), (2) the need to adequately deter criminal conduct (under §
3553(a)(2)(B)), and (3) the need to protect the public from further crimes (under
§ 3883(a)(2)(C)).
      At the end of the sentencing hearing, Fraga objected to the reasonableness
of his sentence, arguing that the sentencing judge did not adequately explain the
sentence and that the sentence was greater than necessary under the factors
enumerated in 18 U.S.C. § 3553(a). This appeal followed. On appeal, Fraga
argues that the sentencing judge committed procedural error and imposed a
substantively unreasonable sentence.


                                               II.
      This Court reviews federal sentences under an abuse-of-discretion
standard, “[r]egardless of whether the sentence imposed is inside or outside the
Guidelines range.”1 Our inquiry involves two steps. First, we must “ensure that
the district court committed no significant procedural error.”2 Second, if the
district court’s sentencing decision is procedurally sound, we “consider the
substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard.”3 Our review of sentencing decisions is “limited to determining
whether they are ‘reasonable.’”4


                                              III.
      On        appeal,   Fraga     questions        the   procedural   and    substantive
reasonableness of both his 27-month prison sentence and his lifetime term of
supervised release. We begin by evaluating the procedural and substantive


      1
          Gall v. United States, 552 U.S. 38, 51 (2007).
      2
          Id.
      3
          Id.
      4
          Id. at 46.

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reasonableness of Fraga’s 27-month prison sentence. Then, we separately
consider Fraga’s lifetime term of supervised release in light of this Court’s recent
decision in United States v. Alvarado.5


                                               A.
      Fraga first argues that the sentencing judge committed procedural error
by not adequately explaining her reasons for (1) rejecting the mitigation
evidence offered by Fraga and (2) imposing an upward variance. Specifically,
Fraga contends that she did not adequately explain why she was rejecting (1) the
Government’s testimony that Fraga had been willing to cooperate with another
prosecution; (2) Fraga’s argument that his prior sexual assault conviction
occurred eighteen years earlier and he has had no other incidents with a child;6
and (3) evidence of Fraga’s recent engagement and employment. Fraga contends
that instead of considering this mitigating evidence, the sentencing judge merely
reviewed his prior convictions and criminal history, stated that she had
considered the § 3553(a) factors, and then concluded that a 27-month term of
imprisonment was necessary to protect the public and deter future criminal
conduct, even declining to provide further explanation for the sentence when
Fraga objected to the adequacy of the explanation. In response, the Government
argues that the record shows that the sentencing judge considered the § 3553(a)
factors, including Fraga’s proffered mitigating evidence, and gave an adequate
explanation for the upward variance, finding it necessary to deter further
criminal conduct and protect the public. We agree and find that the district
court fulfilled its procedural obligation.
      The Supreme Court has explained that a sentencing judge commits
procedural error when she “fail[s] to adequately explain the chosen


      5
          691 F.3d 592 (5th Cir. 2012).
      6
          To be clear, Fraga did not make this argument at sentencing.

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sentence—including an explanation for any deviation from the Guidelines
range.”7 But, the Supreme Court has not imposed stringent requirements
regarding the length or detail of such an explanation. In Rita v. United States,
the Supreme Court explained that where the defendant presents reasons for
imposing a different sentence, as Fraga did here, “the judge will normally go
further and explain why he has rejected those arguments.”8 And, “[w]here the
judge imposes a sentence outside the Guidelines, the judge will explain why he
has done so.”9            The Court recognized, though, that “[s]ometimes the
circumstances will call for a brief explanation; sometimes they will call for a
lengthier explanation.”10 In concluding that the sentencing judge’s explanation
for rejecting the defendant’s arguments for a downward departure was, although
brief, legally sufficient, the Court explained: “The record makes clear that the
sentencing judge listened to each argument.                  The judge considered the
supporting evidence.”11 The Court “acknowledge[d] that the judge might have
said more” but concluded that where a matter is “conceptually simple” and “the
record makes clear that the sentencing judge considered the evidence and
arguments,” the sentencing judge is not required “to write more extensively.”12
Moreover, we have previously explained that when imposing a non-Guidelines
sentence, the district court “need not engage in ‘robotic incantations that each
statutory factor has been considered,’”13 and therefore “a checklist recitation of


       7
           Gall, 552 U.S. at 51.
       8
           551 U.S. 338, 357 (2007).
       9
           Id.
       10
            Id.
       11
            Id. at 358.
       12
            Id. at 359.
       13
        United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) (citations omitted) (quoting
United States v. Lamoreaux, 422 F.3d 750, 756 (8th Cir. 2005)).

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the section 3553(a) factors is neither necessary nor sufficient for a sentence to
be reasonable.”14
      In light of that precedent, we find that the sentencing judge here
adequately explained her reasons for (1) rejecting Fraga’s mitigating evidence
and (2) imposing an upward variance on the term of imprisonment. As in Rita,
the record makes clear that the sentencing judge heard and considered the
evidence and arguments, repeatedly questioned Fraga, the prosecution and the
probation officer, and gave Fraga multiple opportunities to speak and present
mitigating evidence before adopting the PSR’s findings and reasoning.
Moreover, she explained that she found that the upward variance was necessary
to deter future criminal conduct and to protect the public—proper considerations
under § 3553(a)(2)(B) and § 3553(a)(2)(C). As this Court has explained, “[e]rror
does not necessarily result when the district court’s reasons, as in this case, are
not clearly listed for our review.”15 This is not a case where the sentencing judge
“did not mention any § 3553 factors at all” and “did not give any reasons for its
sentence beyond a bare recitation of the Guideline’s calculation.”16 In short, the
record makes the sentencing judge’s reasoning clear and allows for effective
review; no further explanation was required.


                                               B.
      Fraga argues that his sentence to 27 months of imprisonment is
substantively unreasonable (1) because the sentencing judge failed to account
for Fraga’s willingness to cooperate with the Government and (2) because the
sentencing judge gave excessive weight to Fraga’s 1994 sexual assault conviction
and the 2002 allegation of sexual assault, ignoring Fraga’s conduct over the last


      14
           Id. (citation omitted).
      15
           United States v. Bonilla, 524 F.3d 647, 657 (5th Cir. 2008).
      16
           United States v. Mondragon-Santiago, 564 F.3d 357, 362–63 (5th Cir. 2009).

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several years. He also argues that the sentencing judge failed to account for the
age of the 1994 conviction. He contends that, because of these errors, his
sentence is “greater than necessary” and “represents a clear error of judgment
in balancing sentencing factors.”
          Generally, we review the reasonableness of a sentence for abuse of
discretion, unless the issue was not raised below, in which case we review only
for plain error.17 “Appellate review for substantive reasonableness is ‘highly
deferential,’ because the sentencing court is in a better position to find facts and
judge their import under the § 3553(a) factors with respect to a particular
defendant.”18 In determining the substantive reasonableness of a sentence, we
consider “the totality of the circumstances, including the extent of any variance
from the Guidelines range.”19 Where, as here, the sentence is outside the
Guidelines range, we “may consider the extent of the deviation, but must give
due deference to the district court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the variance.”20                  A major deviation from the
Guidelines range requires a greater justification than a minor one.21 “The fact
that the appellate court might reasonably have concluded that a different
sentence was appropriate is insufficient to justify reversal of the district court.”22
With respect to considering the § 3553(a) factors, “[a] non-Guideline sentence
unreasonably fails to reflect the statutory sentencing factors where it (1) does



          17
               Mondragon-Santiago, 564 F.3d at 360–61.
          18
          United States v. Hernandez, 633 F.3d 370, 375 (5th Cir. 2011) (citing United States
v. Key, 599 F.3d 469, 473 (5th Cir. 2010), cert. denied, 131 S. Ct. 997 (2011)).
          19
               United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008) (quoting Gall, 552 U.S.
at 51).
          20
               Gall, 552 U.S. at 51.
          21
               Id. at 50.
          22
               Id. at 51.

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not account for a factor that should have received significant weight, (2) gives
significant weight to an irrelevant or improper factor, or (3) represents a clear
error of judgment in balancing the sentencing factors.”23 Given the great
deference we owe to the sentencing court, we cannot find that the sentencing
judge abused her discretion in sentencing Fraga to a 27-month term of
imprisonment. We consider each of Fraga’s arguments in turn.
       With respect to Fraga’s first argument, the sentencing judge listened to
the Government’s testimony regarding Fraga’s willingness to cooperate and,
after hearing that testimony and questioning the prosecutor, concluded that
Fraga’s willingness to cooperate did not mitigate his offense or criminal history.
In turn, the sentencing judge decided not to give Fraga’s willingness to cooperate
significant weight. No § 3553(a) factor requires the sentencing judge to take
such cooperation into account,24 and we cannot conclude that the sentencing
judge abused her discretion by considering the testimony but ultimately
declining to place significant weight on that cooperation.
       With respect to Fraga’s second argument, the district court judge did not
abuse her discretion in giving significant weight to Fraga’s criminal history and
its characteristics. We have previously explained that “[a] defendant’s criminal
history is one of the factors that a court may consider in imposing a non-
Guideline sentence.”25 And, we have previously found it permissible for a
sentencing judge to “evaluate[] the ‘nature and circumstances of the offense and
the history and characteristics of the defendant’ and conclude[] that it would
deviate ‘to afford adequate deterrence to criminal conduct’ and ‘to protect the


       23
            Smith, 440 F.3d at 708 (citations omitted).
       24
         U.S.S.G. § 5K1.1 provides that “[u]pon motion of the government stating that the
defendant has provided substantial assistance in the investigation or prosecution of another
person who has committed an offense, the court may depart from the guidelines.” Thus, under
§ 5K1.1, the sentencing judge has discretion to reduce the sentence based on cooperation.
       25
            Smith, 440 F.3d at 709 (citation omitted).

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public from further crimes of the defendant.’”26 Thus, the sentencing judge did
not abuse her discretion in considering Fraga’s criminal history and giving it
more weight than Fraga’s willingness to cooperate.
      Although Fraga argues that the sentencing judge relied on an “overblown”
view of his criminal record, the PSR reflects that his assaultive conduct
continued to occur from 1995 through 2010. In particular, the PSR includes
information about three assaults that were not prosecuted and several
convictions for which Fraga received no criminal history points. As such, Fraga’s
criminal history category arguably under-represented the seriousness of his
criminal history and the likelihood that he would commit other crimes, possibly
warranting an upward departure under U.S.S.G. § 4A1.3(a)(1). The sentencing
judge gave Fraga an opportunity to refute those allegations and convictions, and
the probation officer testified that she had confirmed with the victims the factual
accuracy of the 1999 and 2002 allegations of assault and sexual assault. The
probation officer had also provided information on a 2010 allegation of domestic
violence.      In sum, we find that in light of Fraga’s criminal history and
characteristics, the nine-month deviation from the Guidelines range was
substantively reasonable and, in accordance with § 3553(a), was “not greater
than necessary” to effectuate the goals of sentencing.
      Finally, we reject Fraga’s argument that the sentencing judge erred in not
considering the age of his 1994 sexual assault conviction. Fraga did not raise the
argument below, and thus it is subject only to plain error review.27 Even if the
sentencing judge committed a plain error in not considering the age of that
conviction, which is debatable, Fraga has not made any attempt to demonstrate
that the error affected his substantial rights—by showing that there is a
reasonable probability that, but for the district court’s error, he would have


      26
           Id. (quoting 18 U.S.C. §§ 3553(a)(1), (2)(B), (C)).
      27
           See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005) (citations omitted).

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received a lesser sentence28— especially given the sentencing judge’s apparent
concern with the nature of the offense and Fraga’s pattern of assaultive conduct
since 1994.
      In short, we are persuaded that the sentence was reasonable; accordingly,
we affirm Fraga’s 27-month term of imprisonment.


                                                C.
      Although we find Fraga’s prison sentence both procedurally and
substantively reasonable, we must separately consider his sentence to a lifetime
term of supervised release in light of this Court’s recent decision in United States
v. Alvarado.29 In Alvarado, this Court found, under plain error review, that the
sentencing judge had “erred by automatically imposing a lifetime sentence of
supervised release without engaging in any analysis of the circumstances
surrounding Alvarado’s crime.”30 At re-arraignment, the sentencing judge had
declared: “I’ve never given, never not given, since it was authorized, a lifetime,
a lifetime supervision in child pornography.”31 The Alvarado court found:
      This statement suggests that the district court judge automatically
      defaulted to the imposition of a lifetime term. The policy statement
      within the Guideline recommends a statutory maximum term of
      supervised release (life) if the conviction is a sex offense. The
      statute, however, provides for a range of five years to a lifetime term
      of supervision. Therefore, Congress clearly contemplated that there
      would be instances where less than the maximum would be
      reasonable. The judge, by her own admission, never considered the
      possibility of anything less than lifetime supervision. Hence, the
      error was plain. Clearly, the imposition of a lifetime of supervised
      release affects substantial rights. And where a judge admits to the


      28
           United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011) (citation omitted).
      29
           691 F.3d 592 (5th Cir. 2012).
      30
           Id. at 598.
      31
           Id.

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       automatic imposition of a sentence, without regard for the specific
       facts and circumstances of the case or the range provided for in the
       statute, then it seriously affects the fairness, integrity, and public
       reputation of judicial proceedings.32

Similarly here, at Fraga’s re-arraignment, the sentencing judge, who also
sentenced Alvarado, declared: “And I usually do give life imprisonment,
life—sorry—life supervised release in these situations.” And, as in Alvarado, at
the time she imposed the sentence, the sentencing judge did not give reasons for
her decision to impose a lifetime term of supervised release.33 As such, in light
of Alvarado, we must vacate the order regarding the lifetime term of supervised
release and remand the case for further proceedings on that issue.34


                                                IV.
       For the foregoing reasons, we AFFIRM the district court’s order regarding
Fraga’s 27-month term of imprisonment. Further, we VACATE the district
court’s order pertaining to Fraga’s lifetime term of supervised release and
REMAND for further proceedings on this issue.




       32
            Id. (internal citations and footnote omitted).
       33
         We could arguably infer the sentencing judge’s reasons for imposing the lifetime term
of supervised release from the record. However, Alvarado dictates that such an inference is
improper when the sentencing judge has suggested that she automatically defaults to
imposition of a lifetime term of supervised release.
       34
         Fraga’s general objection to the reasonableness of the sentence as a whole, which
included the lifetime term of supervised release, arguably preserved this argument for appeal.
However, even if Fraga forfeited the argument below, Alvarado dictates the result under the
plain error standard of review.

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