     Case: 11-41304   Document: 00511984355   Page: 1   Date Filed: 09/12/2012




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

                                                                   FILED
                                                                September 12, 2012
                                 No. 11-41304                     Lyle W. Cayce
                                                                       Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee
v.

PABLO DOMINGUEZ-ALVARADO,

                                           Defendant-Appellant



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


Before KING, SMITH, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
        Defendant-Appellant Pablo Dominguez-Alvarado appeals the district
court’s imposition of a three-year term of supervised release as part of his
criminal sentence. For the following reasons, we affirm.
                        FACTS AND PROCEEDINGS
        Dominguez-Alvarado, a citizen of Mexico, pleaded guilty to a one-count
indictment charging him with being present in the United States unlawfully
after removal, in violation of 8 U.S.C. § 1326. The presentence report (“PSR”),
dated September 22, 2011, calculated his total offense level to be 21 with a
criminal history category of II, resulting in a recommended Sentencing
Guidelines range of 41 to 51 months of imprisonment. The PSR also reflected
   Case: 11-41304   Document: 00511984355      Page: 2   Date Filed: 09/12/2012



                                  No. 11-41304

that the applicable Guidelines range for a term of supervised release was at least
two years but not more than three years.
      On November 4, 2011, a Second Addendum was added to the PSR to reflect
applicable Guidelines Amendments that went into effect November 1, 2011. The
Second Addendum noted that should the court impose a term of supervised
release, the Guidelines range had changed to at least one year, but not more
than three years. The Second Addendum also added:
            Pursuant to 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 will likely
            be deported after imprisonment. However, as per
            Application Note 5, 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.

Dominguez-Alvarado did not object to the PSR.
      The district court sentenced Dominguez-Alvarado to a term of 46 months’
imprisonment, to be followed by three years of supervised release. Dominguez-
Alvarado objected to the reasonableness of the 46 months of imprisonment.
Dominguez-Alvarado then added, “[a]lso [I] object to the term of supervised
release that’s imposed as an upward departure,” to which the district court
responded, “[t]hank you, sir.”
                          STANDARD OF REVIEW
      We review sentences for reasonableness by engaging in a bifurcated
review. 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
sentencing court committed no significant procedural error, such as “failing to
calculate (or improperly calculating) the Guidelines range, treating the


                                        2
   Case: 11-41304   Document: 00511984355      Page: 3   Date Filed: 09/12/2012



                                  No. 11-41304

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. If the sentencing decision is
procedurally sound, we then consider the “substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard.” Id.
      If a defendant fails to properly object to an alleged error at sentencing,
however, the procedural reasonableness of his sentence is reviewed for plain
error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.
2009). “The standard . . . shields this court from ruling on issues that have been
insufficiently vetted below.” United States v. Chavez-Hernandez, 671 F.3d 494,
497 (5th Cir. 2012). Objections must be raised to place the district court on
notice about potential issues for appeal, and to give the district court an
opportunity to “clarif[y] or, if necessary, correct[] itself.” United States v.
Hernandez-Martinez, 485 F.3d 270, 272-73 (5th Cir. 2007); see also United States
v. Rodriguez, 15 F.3d 408, 414 (5th Cir. 1994) (“A party must raise a claim of
error with the district court in such a manner so that the district court may
correct itself and thus, obviate the need for our review.”). Therefore, objections
that are too vague are reviewed on appeal for plain error because they cannot
“alert the court to the legal argument [the party] now presents.” Hernandez-
Martinez, 485 F.3d at 272.
      Dominguez-Alvarado failed to raise his claim of error in a manner that
could have placed the district court on notice of the error he now asserts. On
appeal, he argues that because the Guidelines state that a term of supervised
release “ordinarily” should not be imposed, the district court should have
provided fact-specific reasons to justify the imposition of a term of supervised
release. Yet before the district court, his objection to “the term of supervised
release that’s imposed as an upward departure” makes no reference to the

                                        3
   Case: 11-41304       Document: 00511984355         Page: 4     Date Filed: 09/12/2012



                                       No. 11-41304

Guidelines’ use of the word “ordinarily,” nor a request for additional explanation
of the reasons for his sentence. Further, in light of his preceding objection to the
substantive reasonableness of the term of imprisonment, it is unclear that
Dominguez-Alvarado’s statement was a procedural objection to the imposition
of any term of supervised release, as opposed to a substantive objection to the
length of the term of supervised release. Accordingly, we review Dominguez-
Alvarado’s claim for plain error. See Mondragon-Santiago, 564 F.3d at 361
(applying plain error review where defendant’s 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”).1
       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
fairness, integrity, or public reputation of judicial proceedings.” Puckett v. United
States, 556 U.S. 129, 135 (2009) (internal quotation marks and alterations
omitted).
                                       ANALYSIS
       A district court must apply the Guidelines version in effect at the time of
sentencing. 18 U.S.C. § 3553(a)(4)(A)(ii); United States v. Martin, 596 F.3d 284,

       1
         The significance of identifying argument is evident also in Dominguez-Alvarado’s
footnote observation in his statement of his case that the oral and written sentencing
pronouncements do not conform on the issue before us. Dominguez-Alvarado makes no
argument that the inconsistency requires that we vacate his sentence, and it is true that when
there is a conflict between a written sentence and an oral pronouncement, the oral
pronouncement controls. United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003)
(citation omitted).

                                              4
   Case: 11-41304     Document: 00511984355       Page: 5    Date Filed: 09/12/2012



                                    No. 11-41304

286 (5th Cir. 2010). Effective November 1, 2011, Guidelines § 5D1.1 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).                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).2
      On appeal, Dominguez-Alvarado argues that because the Guidelines state
that the sentencing court “ordinarily should not impose a term of supervised
release,” the district court departed from the Guidelines recommendation when
it imposed a three-year term of supervised release and, therefore, erred in failing
to explain its deviation from the Guidelines recommendation. We disagree.
      When interpreting the Guidelines, “it is necessary to give meaning to all
its words and to render none superfluous.” Rayo-Valdez, 302 F.3d at 318 (citing



      2
          Guidelines commentary is binding and 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) (citation omitted).

                                          5
   Case: 11-41304        Document: 00511984355           Page: 6      Date Filed: 09/12/2012



                                         No. 11-41304

United States v. Vickers, 891 F.2d 86, 88 (5th Cir. 1989), for the proposition that
the Guidelines are subject to rules of statutory construction and interpretation).
In 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 for most deportable aliens,
imposing supervised release is unnecessary because the deterrent and protective
effect of supervised release 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 supervised release in uncommon
cases where added deterrence and protection are needed. The word “ordinarily”
is hortatory, not mandatory, in this provision.3 As to any defendant specified in
subsection (c), the statutory supervised release range is zero to three years, 18
U.S.C. § 3583(b)(2), and the amended Guidelines range, set forth in the Second
Addendum and not objected to by Dominguez-Alvarado, is one to three years,
should a sentencing court elect to impose a term of supervised release. Here, the
district court imposed three years. No departure analysis is triggered, therefore,
nor has Dominguez-Alvarado offered caselaw that applies departure analysis to
imposition of a supervised release term that is within both the statutory and
Guidelines range for the offense of conviction.
       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


       3
        Two subsections earlier, the Guidelines state that “[t]he court shall order a term of
supervised release . . . except as provided in subsection (c) . . . .” U.S.S.G. § 5D1.1(a) (emphasis
added). As further illustration, the Guidelines use of the phrase “ordinarily should not” is not
equivalent to, for example, the Guidelines instruction to the district court to “increase by 16”
Dominguez-Alvarado’s base offense level based on his previous drug trafficking conviction, or
“decrease the offense level by 2 levels” and “decrease the offense level by 1 additional level”
based on his acceptance of responsibility for his offense. See § 2L1.2(b)(1)(A)(I); §§3E1.1(a)-(b)
(emphases omitted).

                                                 6
   Case: 11-41304    Document: 00511984355       Page: 7   Date Filed: 09/12/2012



                                  No. 11-41304

case. The district court in this case was not asked to focus on § 5D1.1(c) and the
accompanying commentary in sentencing Dominguez-Alvarado, yet nonetheless
did state, “I gave the sentence after looking at the factors in 3553(a), to deter
future criminal conduct, his particular background and characteristics, which
apparently do not make him a welcome visitor to this country.” Even when an
objection is voiced under § 5D1.1(c), this particularized explanation and concern
would justify imposition of a term of supervised release. We anticipate that
where a defendant has objected to the imposition of supervised release on the
basis that no unusual or uncommon facts or circumstances exist, the sentencing
court will adhere to the Rule 32 process and set forth factual findings for its
determination. See Fed. R. Crim. P. 32(i)(3)(B) (“At sentencing, the court: . . .
must—for any disputed portion of the pre-sentence report or other controverted
matter—rule on the dispute or determine that a ruling is unnecessary either
because the matter will not affect sentencing, or because the court will not
consider the matter at sentencing . . . .”); see also United States v. Hooten, 942
F.2d 878, 881 (5th Cir. 1991) (vacating sentence and remanding for
determinative findings, highlighting that “Rule 32 serves the twin goals of
obtaining a fair sentence based on accurate information and obtaining a clear
record of the resolution of disputed facts.”).
      In light of the district court’s particularized remark at sentencing, we hold
that Dominguez-Alvarado’s sentence does not constitute error, plain or
otherwise. Dominguez-Alvarado’s sentence is AFFIRMED and the case is
REMANDED for amendment of the written judgment to conform to the oral
sentence.




                                         7
