     Case: 12-50520       Document: 00512208406         Page: 1     Date Filed: 04/15/2013




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

                                                                            FILED
                                                                           April 15, 2013
                                     No. 12-50520
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RODGER GEOVANNY KELLY-AGUIRRE,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:11-CR-1662-1


Before REAVLEY, JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
       Rodger Geovanny Kelly-Aguirre pleaded guilty to illegal reentry and
received a sentence of 41 months in prison, to be followed by a three-year term
of supervised release. He appeals, asserting that his sentence is unreasonable
because the court imposed a term of supervised release notwithstanding
§ 5D1.1(c) of the Sentencing Guidelines, which provides that supervised release
“ordinarily” should not be imposed “in a case in which supervised release is not
required by statute and [] defendant is a deportable alien who likely will be

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-50520     Document: 00512208406      Page: 2    Date Filed: 04/15/2013

                                  No. 12-50520

deported after imprisonment.” Because Kelly-Aguirre did not object to the
imposed sentence, he is entitled only to plain error review. See United States v.
Dominguez-Alvarado, 695 F.3d 324, 328 (5th Cir. 2012). To establish such an
error, Kelly-Aguirre must show a forfeited error that is clear or obvious and that
affects his substantial rights. See 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 will do so only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See id.
      The district court was aware of the provisions of § 5D1.1(c) because they
were provided in the presentence report, which the court adopted. Although
Kelly-Aguirre asserts that the court failed to explain its imposition of supervised
release, the court made statements at sentencing addressing Kelly-Aguirre’s
criminal history and indicating a need to protect the public. See Dominguez-
Alvarado, 695 F.3d at 329-30. Thus, Kelly-Aguirre has not shown that the
district court committed a procedural error at sentencing. See Gall v. United
States, 552 U.S. 38, 51 (2007).
      Additionally, Kelly-Aguirre fails to show error with regard to the
substantive reasonableness of his sentence. See id. The court’s statements at
sentencing provided support for the imposed term of supervised release. See
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Although Kelly-
Aguirre correctly asserts that § 5D1.1(c) advises that “ordinarily” supervised
release should not be imposed where, as here, a defendant is apt to be deported
after he serves his prison sentence, “the court should [] consider imposing a term
of supervised release . . . if the court determines it would provide an added
measure of deterrence and protection.” § 5D1.1, comment. (n.5).
      Kelly-Aguirre has not presented a clear or obvious error affecting his
substantial rights. See Puckett, 556 U.S. at 135. Consequently, the judgment
of the district court is AFFIRMED.



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