     Case: 12-40080       Document: 00512110043         Page: 1     Date Filed: 01/11/2013




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

                                                                            FILED
                                                                         January 11, 2013
                                     No. 12-40080
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LUIS ALFONSO MARTINEZ VALLEJO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:11-CR-1001-1


Before STEWART, Chief Judge, and KING and CLEMENT, Circuit Judges.
PER CURIAM:*
       Luis Alfonso Martinez Vallejo (Martinez) appeals the sentence imposed
following his guilty plea conviction for being an alien present in the United
States after previously having been deported, in violation of 8 U.S.C. § 1326(a)
and (b)(1).     The district court sentenced Martinez within the applicable
guidelines range to 55 months of imprisonment and a three-year term of
supervised release.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40080

      Martinez contends that the district court reversibly erred by imposing a
term of supervised release in light of amended United States Sentencing
Guidelines § 5D1.1(c), which became effective two months before he was
sentenced. Section 5D1.1(c) provides that “[t]he 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.” Martinez argues that the district court plainly
erred by failing to explain why it was imposing a term of supervised release
notwithstanding the Guidelines’ advice and by failing to give notice of its intent
to depart from the Guidelines. He also argues that his sentence is substantively
unreasonable because the district court did not consider or account for the
recommendation in § 5D1.1(c), which he contends was a sentencing factor that
should have received significant weight.
      Because Martinez did not object to the imposition of a term of supervised
release or to either the procedural or substantive reasonableness of his sentence
in the district court, our review is limited to plain error. United States v.
Dominguez-Alvarado, 695 F. 3d 324, 327 (5th Cir. 2012). To show plain error,
he 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, we have the discretion to correct the error but only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.
      Martinez cannot show that the district court committed clear error in
imposing a term of supervised release.       Section 5D1.1(c)’s advice against
imposing a term of supervised release is not mandatory. Dominguez-Alvarado,
695 F.3d at 329. Further, notwithstanding the recent addition of the provisions
of § 5D1.1(c), a “departure analysis” is not triggered where the district court
imposes a term of supervised release that is within the statutory and guidelines
range for the offense of conviction, as in this case. Id. Thus, Martinez’s

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                                 No. 12-40080

argument that the imposition of a term of supervised release was a departure for
which the district court was required to give notice and provide explanation is
unavailing. See id. Moreover, as in Dominguez-Alvarado, the record in this case
reflects that the district court’s explanation for the sentence it imposed was
adequate under the circumstances to justify the imposition of a term of
supervised release.    The district court considered Martinez’s history and
circumstances as well as the need for the sentence to provide added deterrence.
      As for Martinez’s argument that the sentence was substantively
unreasonable because the court failed to account for a factor that should have
received significant weight, the district court noted in its Statement of Reasons
that it adopted the presentence report, and it provided adequate reasons for the
imposition of the term of supervised release. Moreover, because Martinez’s
three-year term of supervised release was within the statutory and guidelines
range for the offense of conviction it is presumptively reasonable, and we
therefore infer that the district court considered all pertinent sentencing
considerations in imposing the sentence. See Dominguez-Alvarado, 695 F.3d at
329-30; United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).
      Martinez also argues that his offense level should have been reduced by
an additional point for acceptance of responsibility under U.S.S.G. § 3E1.1(b)
because the Government improperly refused to file the requisite motion for the
reduction. He concedes, however, that this issue is foreclosed by United States
v. Newson, 515 F.3d 374, 378 (5th Cir. 2008).
      Accordingly, the judgment of the district court is AFFIRMED.




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