            Case: 14-14014    Date Filed: 03/17/2015   Page: 1 of 5


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 14-14014
                          Non-Argument Calendar
                        ________________________

                D.C. Docket No. 2:14-cr-00020-WKW-SRW-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

GIOVANY GABRIEL RODRIGUEZ-ORO,
a.k.a. Giovany Rodriguez,

                                                           Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Alabama
                       ________________________

                              (March 17, 2015)

Before TJOFLAT, HULL, and ROSENBAUM, Circuit Judges.

PER CURIAM:

     Giovany Gabriel Rodriguez-Oro pleaded guilty to reentry of a
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deported alien, in violation of 8 U.S.C. § 1326(a), and the District Court sentenced

him to time served 1 and a one-year term of supervised release. In imposing

sentence, the court stated that, despite the fact that Rodriguez-Oro was subject to

deportation, a term of supervised release was appropriate because the threat of

prosecution upon any future reentry would not be a sufficient deterrent due to the

fact that “there are 15 million or so illegal aliens in the United States right now

who are not being prosecuted.” Rodriguez-Oro appeals his sentence, arguing that

the imposition of the one-year term of supervised release is procedurally and

substantively unreasonable.

       We review a district court’s imposition of supervised release for abuse of

discretion. United States v. Zinn, 321 F.3d 1084, 1087 (11th Cir. 2003). We

review the substantive reasonableness of the term of supervised release for abuse

of discretion, after ensuring that the term is procedurally reasonable. Gall v. United

States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L. Ed. 2d 445 (2007).

       Under 18 U.S.C. § 3583, a district court may impose a term of supervised

release as part of its sentence. 18 U.S.C. § 3583(a). In determining whether to

include such a term, the length of the term and the conditions of the release, the

court “shall consider the factors set forth in [18 U.S.C. §§] 3553 (a)(1), (a)(2)(B),

       1
          The presentence investigation report (“PSI”) fixed Rodriguez-Oro’s total offense level
at 6, see U.S.S.G. §§ 2L1.2 and 3E1.1(a), and his criminal history category at I. This yielded a
sentence range of zero to six months’ imprisonment and a supervised release term of up to one
year. Neither party objected to the PSI’s factual recitations or sentence range calculation.
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(a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).” Id. 3583(c). These factors

include: the nature and circumstances of the offense; the history and characteristics

of the defendant; the kinds of sentences available; the applicable guideline range;

the pertinent policy statements of the Sentencing Commission; and the need to

deter criminal conduct, protect the public from the defendant’s future criminal

conduct, and avoid unwarranted sentencing disparities.

      Under U.S.S.G. § 5D1.1, the court may order a term of supervised release

when such a term is not required by statute and the court does not order a term of

imprisonment of more than one year. U.S.S.G. § 5D1.1(a)–(b). However, when

the defendant is an alien likely to be deported after imprisonment, the court

“ordinarily should not impose a term of supervised release.” Id. § 5D1.1(c). The

application notes explain:

      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.

Id. cmt. n.5.

      A sentence is procedurally unreasonable if the court erred in calculating the

Guidelines sentence range, treated the Sentencing Guidelines as mandatory, failed

to consider the 18 U.S.C. § 3553(a) factors, selected a sentence based on clearly
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erroneous facts, or failed to adequately explain the sentence. United States v.

Livesay, 525 F.3d 1081, 1091 (11th Cir. 2008).

      Although the Sentencing Guidelines are advisory, the court must treat them

as the “‘starting point and the initial benchmark.’” Kimbrough v. United States,

552 U.S. 85, 108, 128 S.Ct. 558, 574, 169 L. Ed. 2d 481 (2007) (quoting Gall, 552

U.S. at 49, 128 S. Ct. at 596). The Supreme Court has recognized that the

Sentencing Commission has the capacity courts lack to “base its determinations on

empirical data and national experience, guided by a professional staff with

appropriate expertise.” Id. at 108–09, 128 S.Ct. at 574 (quotation marks omitted).

On the other hand, the sentencing judge has greater familiarity with the individual

case and individual defendant and is in a superior position to find facts and weigh

their import under the instructions set out in § 3553(a). Id. at 109, 128 S.Ct. at

574. Given these institutional strengths, the Supreme Court has stated that a

district judge’s decision to vary from the Guidelines sentence range may attract

greatest respect when the judge finds a particular case “outside the ‘heartland’ to

which the Commission intends individual Guidelines to apply,” while closer

review may be in order when the judge varies from the Guidelines based solely on

the view that the Guidelines sentence range “‘fails properly to reflect § 3553(a)

considerations’ even in a mine-run case.” Id. at 109, 128 S.Ct. at 574–75 (quoting




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Rita v. United States, 551 U.S. 338, 351, 127 S. Ct. 2456, 2465, 168 L. Ed. 2d 203

(2007)).

        We conclude that the District Court committed procedural error in imposing

the one-year term of supervised release. First, the sole fact the court cited for the

imposition lacked evidentiary support. Cf. Livesay, 525 F.3d at 1091. The court

found that Rodriguez-Oro would likely not be prosecuted upon any future reentry

based solely upon the number of illegal aliens in the United States who are not

being prosecuted. The record, including the PSI, contains nothing to support that

fact.

        Second, we find nothing in the record indicating that the court considered

the applicable 18 U.S.C. § 3553(a) factors or explained why the recommendation

of U.S.S.G. § 5D1.1(c) should not be followed. Cf. Livesay, 525 F.3d at 1090–91;

U.S.S.G. § 5D1.1(c). The court’s reason for imposing supervised release therefore

appears not to have been based on any § 3553(a) factor or any fact specific to

Rodriguez-Oro’s case, but, instead, on a factually unsupported disagreement with

the underlying premise of the relevant Guidelines provision.

        Accordingly, we vacate Rodriguez-Oro’s sentence and remand for

resentencing.2

        VACATED AND REMANDED.


        2
            Rodriguez-Oro’s motion for leave to file a reply brief out-of-time is granted.
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