     Case: 12-40260       Document: 00512137285         Page: 1     Date Filed: 02/06/2013




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

                                                                            FILED
                                                                         February 6, 2013

                                       No. 12-40260                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,
v.

RAMIRO DIAZ MORIN, also known as Jesus Rojas-Diaz, also known as
Ramiro Jesus Diaz, also known as Ramiro Diaz,

                                                  Defendant - Appellant.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                           U.S.D.C. No. 5:11-CR-1223-1


Before STEWART, Chief Judge, and DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Ramiro Diaz Morin (“Diaz Morin”) pleaded guilty to
illegal reentry of a deported alien in violation of 8 U.S.C. § 1326. The district
court sentenced him to fifty-one months imprisonment and three years of
supervised release. On appeal, Diaz Morin argues that the district court’s
imposition of the supervised release term was procedurally and substantively
unreasonable under U.S.S.G. § 5D1.1(c). We AFFIRM.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                      No. 12-40260

                                  I. BACKGROUND
       Diaz Morin’s presentence report (“PSR”), prepared January 9, 2012,
calculated his total offense level to be 22 with a criminal history category of III.
This resulted in a recommended United States Sentencing Guidelines
(“U.S.S.G.” or “Guidelines”) range of 51 to 63 months imprisonment. Citing
U.S.S.G. §§ 5D1.1 and 5D1.2, the PSR stated that the Guidelines range for a
term of supervised release was at least one year but not more than three years.
The PSR also noted that, “[p]ursuant to U.S.S.G. § 5D1.1(c), the court ordinarily
should not impose a term of supervised release in a case in which supervision is
not required by statue [sic] and the defendant is a deportable alien who likely
will be deported after imprisonment.”
       At the sentencing hearing, the district court noted Diaz Morin had been
deported twice previously and had been convicted of a drug crime before his most
recent deportation. The district court refused to grant Diaz Morin’s request for
a downward variance and sentenced him to fifty-one months imprisonment and
a three-year period of supervised release.
       Diaz Morin now appeals his sentence, arguing that his sentence is
procedurally and substantively unreasonable because the district court did not
(1) adequately explain its decision to impose a term of supervised release; (2)
give notice of its intent to depart from the Guidelines by imposing a term of
supervised release; (3) account for a factor that should have received significant
weight, namely the Guidelines’ recommendation that “ordinarily” a supervised
release term should not be imposed on deportable aliens; and (4) grant Diaz
Morin’s request for an additional one-level reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1(b) where the Government did not move for
the reduction.1

       1
         Diaz Morin concedes that United States v. Newson, 515 F.3d 374, 378 (5th Cir. 2008)
forecloses this argument. One panel of this court may not overrule the decision of another

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                                      No. 12-40260

                                   II. DISCUSSION
       As Diaz Morin did not challenge the imposition of the term of supervised
release in the district court, our review is for plain error. See United States v.
Dominguez-Alvarado, 695 F.3d 324, 327 (5th Cir. 2012). Under plain error
review, Diaz Morin must show a forfeited error that is clear or obvious and
affects his substantial rights. Id. at 328; Puckett v. United States, 556 U.S. 129,
135 (2009). If he makes such a showing, this court has the discretion to correct
the error but only if it “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Dominguez-Alvarado, 695 F.3d at 328
(internal quotation marks and citation omitted).
       We first address Diaz Morin’s second argument. The term of supervised
release imposed in Diaz Morin’s case was within the statutory and Guidelines
range for his offense. As Diaz Morin concedes in his reply brief, in Dominguez-
Alvarado, we held that this situation does not require the district court to
conduct a departure analysis. See id. at 329. Therefore, Diaz Morin’s argument
that the district court was required to give notice of and an explanation for the
supervised release term fails.
       We now turn to Diaz Morin’s first and third arguments, which are that the
district court did not adequately explain its decision to impose a term of
supervised release and did not account for the Guidelines’ recommendation that
“ordinarily” a term of supervised release should not be imposed on a deportable
alien. In Dominguez-Alvarado, we held that the imposition of supervised release
on the defendant did not constitute error, plain or otherwise, because the district
court, while not focusing on U.S.S.G. § 5D1.1(c) and the accompanying
commentary, offered a “particularized explanation and concern [that] justif[ied]


absent an en banc or superseding Supreme Court decision. United States v. Lipscomb, 299
F.3d 303, 313 n.34 (5th Cir. 2002) (citation omitted). Accordingly, we need not consider this
argument.

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                                 No. 12-40260

imposition of a term of supervised release” at sentencing.          Id. at 330.
Specifically, the Dominguez-Alvarado district court stated, “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.” Id.
      Here, when addressing Diaz Morin’s sentence, the district court
specifically noted his prior deportations and criminal history. Thus, we find the
district court’s statement sufficiently analogous to the explanation we approved
in Dominguez-Alvarado, especially since Diaz Morin did not ask the court to
focus on § 5D1.1(c) and the accompanying commentary in sentencing Diaz
Morin. See id. Moreover, because the supervised release term is within the
recommended Guidelines range, we infer that the district court considered all
pertinent sentencing considerations in imposing its sentence on Diaz Morin. See
United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Thus, Diaz Morin has
not met the plain error standard with respect to his term of supervised release.
                             III. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s sentence.




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