                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-4828


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

CARLOS    BAUTISTA-VILLANUEVA,  a/k/a    Andres   Bautista
Villanueva, a/k/a Roberto Gutierrez Rodriguez, a/k/a Paulo
Bautista,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:12-cr-00222-WDQ-1)


Argued:   September 20, 2013            Decided:   November 21, 2013


Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.         Judge
Niemeyer wrote a dissenting opinion.


ARGUED:    Joanna Beth Silver, OFFICE OF THE FEDERAL PUBLIC
DEFENDER,   Baltimore, Maryland,  for  Appellant.    Rod   J.
Rosenstein, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore,
Maryland, for Appellant.   Roger K. Picker, Special Assistant
United   States   Attorney,   UNITED   STATES   CITIZENSHIP   AND
IMMIGRATION SERVICES, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     Section 5D1.1(c) of the United States Sentencing Guidelines

(USSG) 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.”                                    USSG

§ 5D1.1(c).       Official commentary to this Guideline explains that

“[t]he    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.”

USSG § 5D1.1, comment. (n.5).

     In the instant case, supervised release is not required by

statute       and     the       defendant,         Carlos         Bautista-Villanueva

(Defendant), is a deportable alien who likely will be deported

back to Mexico after serving his sentence of fifty-seven months’

imprisonment        resulting      from   his     conviction       on   one        count   of

illegal reentry by an aggravated felon, 8 U.S.C. §§ 1326(a) and

(b)(2).       Although the district court imposed a three-year term

of   supervised       release      upon   Defendant,        the    record         does     not

disclose whether the district court did so after determining

that imposition of a term of supervised release upon Defendant

would    provide     an   added     measure     of   deterrence         and       protection

based on the facts and circumstances of Defendant’s case, such

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that his case would not be considered ordinary for purposes of

USSG § 5D1.1(c).

       On appeal, Defendant acknowledges that the Guidelines are

advisory as opposed to mandatory; however, Defendant argues that

USSG   §     5D1.1(c)      “must    have    some     effect,    and       it    cannot     be

procedurally        reasonable      for     a   district      court       to    ignore     it

completely, with no supportive findings, explicit or implicit,

in the record.”            (Defendant’s Opening Br. at 14).                      “For this

reason,”     Defendant      contends,       “the     imposition      of    a    period     of

supervised release in this case was procedurally unreasonable,

and this Court should vacate the sentence and remand the case

for resentencing.”          Id.

       Contrary to the government’s position on appeal, the record

does   not    disclose      whether    the      district     court,    in       imposing    a

three-year term of supervised release upon Defendant, considered

USSG § 5D1.1(c) and its relevant commentary sufficiently for us

to   conduct    meaningful         appellate       review    regarding         whether   the

district court performed an adequate individualized assessment

of the propriety of imposing a term of supervised release upon

Defendant.          Accordingly,      we    vacate     Defendant’s         sentence      and

remand this case to the district court for the limited purpose

of the district court revisiting its decision to impose a term

of supervised release upon Defendant.                        We express no opinion

regarding     how    the    district       court    should    rule    on       this   issue.

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However,    in    so     ruling,       the    district    court     must    perform    an

individualized assessment of the propriety of imposing a term of

supervised release upon Defendant sufficient for us to conduct

meaningful        appellate        review,           including         explaining     its

consideration       of     the     advisory          guidance     provided    in      USSG

§ 5D1.1(c) and the official commentary to this Guideline, see

USSG § 5D1.1, comment. (n.5); see United States v. Carter, 564

F.3d 325, 328 (4th Cir. 2009) (“Procedural errors include . . .

failing to adequately explain the chosen sentence—including an

explanation       for    any     deviation       from     the    Guidelines     range.”

(internal     quotation        marks    omitted)).         If    the    district    court

sentences Defendant to a term of supervised release on remand,

and if Defendant believes the district court procedurally erred

with respect to imposing such term, Defendant may note another

appeal   on      that    ground    in        compliance    with    Federal     Rule    of

Appellate Procedure 4(b).

                                                                VACATED AND REMANDED




                                             - 5 -
NIEMEYER, Circuit Judge, dissenting:

     The   district        court   conducted          a    thorough,        individualized

assessment        of     Bautista-Villanueva’s              criminal         history     and

personal characteristics and provided a reasonable justification

for the sentence it imposed on him.                         The majority admits as

much, as it finds no fault with the district court’s explanation

for imposing the sentence of imprisonment.                            Nonetheless, the

majority holds that the district court erred by imposing a term

of supervised release without giving an explicit justification

in view of U.S.S.G. § 5D1.1(c) (stating that a court should

“ordinarily”       not   impose    a   term      of       supervised    release        for   a

defendant who “likely will be deported after imprisonment”).

     After noting during the sentencing hearing the fact that

Bautista-Villanueva          had   twice      before            illegally    entered     the

United States, the district court imposed a three-year term of

supervised     release     as   part   of     Bautista-Villanueva’s              sentence,

even though he would likely be deported after serving his prison

term, and it required, as a condition, that Bautista-Villanueva

“cooperat[e] with ICE officials” and, if deported, “not reenter

the United States without express permission of the Attorney

General”     or    his    representative.                 The     majority    faults     the

district     court’s       imposition       of     supervised         release      because

U.S.S.G.   §      5D1.1(c)    provides      that      supervised       release     is    not

ordinarily imposed when the defendant will likely be deported

                                        - 6 -
and the court did not reference § 5D1.1(c) and explain why this

case was not ordinary.

     While    the   district   court       did   not   say   explicitly,     when

imposing supervised release, why this case was extraordinary,

the record shows that the district court understood that it was

not the ordinary situation involving the deportation of an alien

who had committed a crime in the United States.                    The court’s

discussion of Bautista-Villanueva’s repeated illegal entries and

its requirement that he not reenter make clear that the court

was concerned about deterrence.

     In requiring a more explicit and detailed explanation, the

majority has created a new procedural formalism that will be

required     whenever   courts    sentence           deportable    aliens     to

supervised release.

     Because I think such a requirement finds no support in the

Sentencing Guidelines and because the sentencing court in the

present case made clear that it was imposing supervised release

because of Bautista-Villanueva’s history and as a deterrence, I

respectfully dissent.


                                       I

     Carlos    Bautista-Villanueva         is    a   36-year-old   citizen    of

Mexico, who first entered the United States illegally when he

was 13.      He was removed from the United States in 2007 and


                                  - 7 -
illegally    entered    the       country    a    second    time       in    2010.         When

Bautista-Villanueva was thereafter found in Baltimore, Maryland,

he was charged with unlawful reentry by an aggravated felon, in

violation of 8 U.S.C. § 1326(a), (b)(2), and pleaded guilty to

the charge.

     In the presentence report, the probation officer noted that

Bautista-Villanueva’s         “guideline         range     for    .    .     .    supervised

release” was one to three years.                       But, the report continued,

“[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 the

defendant    is   a   deportable      alien       who    will    likely          be    deported

after     imprisonment.”            The     presentence          report          noted     that

Bautista-Villanueva        would      likely       be    deported          following        the

service of his sentence.

     At    the    sentencing       hearing,       Bautista-Villanueva’s                counsel

urged the court to issue a light term of imprisonment and noted

that “pursuant to the Guideline, 5D1.1(c), . . . a period of

supervised       release     is     not     necessary,          nor     is        it     really

recommended in this case, because he will be deported.”                                  Before

imposing its sentence, the court recounted Bautista-Villanueva’s

criminal    history    and    described          his    record    of    illegal          entry,

stating, “Mr. Bautista-Villanueva is a citizen of Mexico.                                    He

was removed from the United States to Mexico on December 5,

2007, reentered the country without authorization, and was found

                                          - 8 -
here on March 28th, 2012, when he was taken into custody by ICE

officers.”     The court went on to recount aspects of Bautista-

Villanueva’s personal history -- that he had an abusive father,

completed eleventh grade, had been employed in the construction

industry,    and   had   a   wife   and   son.   It    then    provided    the

following assessment:

          In this case, the seriousness of his criminal
     history, I think, is balanced against his age
     and . . .   the fact that . . . the offenses were
     committed over a relatively brief period of time.
     Accordingly, I do believe that there is some over-
     representation   of   seriousness     of  the    record.
     Accordingly, I will grant a departure – a one criminal
     history level departure downward, and I believe that,
     given the Defendant’s age and plans for life in Mexico
     and what I perceive as a reduced likelihood of
     recidivism, a sentence at the bottom of the advisory
     guidelines range . . . is sufficient but not greater
     than necessary to reflect the seriousness of the
     offense,   provide   just    punishment  and   adequate
     deterrence, promote respect for the law, and protect
     the public from further crimes of the Defendant.
          Accordingly, Mr. Bautista-Villanueva, I commit
     you to the custody of the Attorney General or his
     authorized designee in the Bureau of Prisons to serve
     a term of imprisonment of 57 . . . months; impose a
     three-year term of supervised release with special
     conditions of cooperation with ICE officials, and that
     you follow any lawful order entered in your case by
     the Immigration authorities.
          I will also recommend drug and alcohol screening
     and treatment as a part of the supervised release.

(Emphasis added).        In its written judgment, the court included

as conditions of Bautista-Villanueva’s supervised release:                “The

defendant shall be surrendered to a duly authorized immigration

official     for   deportation      in    accordance    with    established


                                    - 9 -
procedures provided by the Immigration and Naturalization Act.

If ordered deported, the defendant shall not reenter the United

States without express permission of the Attorney General, or

his/her designated representative.”

                                       II

     The    majority   has    no     qualms    with     the    district    court’s

explanation     and    justification         for   the      57-month      term    of

imprisonment,    but   it    finds    that    court’s      explanation     for    the

imposition of supervised release procedurally unreasonable.                       On

remand, the majority would have the district court “explain[]

its consideration of the advisory guidance provided in USSG §

5D1.1(c) and the official commentary to this Guideline.”                     Ante,

at 5.

     To    my   knowledge,    this    is     the   first      instance    where   an

appellate court has reversed a district court for inadequately

justifying an imposition of supervised release under § 5D1.1(c). *

     *
       I am aware of two cases in which appellate courts have
found error with sentencing courts’ impositions of supervised
release under § 5D1.1(c). United States v. Butler, No. 11-4383,
2013 U.S. App. LEXIS 14736 (3d Cir. July 19, 2013); United
States v. Chavez-Trejo, No. 12-40006, 2013 U.S. App. LEXIS 6734
(5th Cir. Apr. 3, 2013) (per curiam).   In both of these cases,
the sentencing court had made clear errors of law:    in Butler,
by relying on the outdated 2010 Guidelines; and, in Chavez-
Trejo, by mistakenly stating that supervised release was
mandatory. Neither of these cases are akin to the present facts,
though, where the court was presented with correct statements of
law and simply failed to explicitly justify the term of
supervised release.


                                     - 10 -
The majority appears to be fashioning a new procedural rule that

district      courts     hereafter     must    always    explicitly          justify      an

imposition of supervised release on deportable aliens, perhaps

with specific reference to U.S.S.G. § 5D1.1(c).

     Yet, U.S.S.G. § 5D1.1(c) does not impose such a procedural

requirement.             Indeed,     the      language       of     §    5D1.1(c)        is

conspicuously hortatory (“The court ordinarily should not impose

a term of supervised release . . .”).                         See United Sates v.

Dominguez-Alvarado, 695 F.3d 324, 329 (5th Cir. 2012).                           And the

Commentary to § 5D1.1(c) instructs courts to “consider imposing

a term of supervised release . . . if the court determines it

would provided an added measure of deterrence and protection

based    on   the    facts     and   circumstances      of    a    particular         case.”

(Emphasis added).             This is because, as the Fifth Circuit has

noted, the addition of § 5D1.1(c) was “animated primarily by

administrative          concerns     inherent     in     trying         to     administer

supervised release as to someone who has been deported.”                              United

States v. Becerril-Peña, 714 F.3d 347, 350 (5th Cir. 2013).

     Like the Fifth Circuit, I can find no indication that the

Sentencing Commission intended § 5D1.1(c) to provide deportable

aliens    with      a   new    procedural     shield     to       protect      them    from

supervised       release.        See    Becerril-Peña,         714      F.3d    at     350.

Indeed, such a motive would have been rather illogical.                                  As

Bautista-Villanueva’s            counsel      admitted        at     oral       argument,

                                        - 11 -
supervised      release      is     inconsequential           to    aliens     who    do    not

illegally reenter the United States.                          Supervised release for

deportable aliens is only useful because it streamlines removal

proceedings against aliens who do illegally reenter.                                I find it

difficult to believe that the Sentencing Commission promulgated

§    5D1.1(c)       to   make     more     difficult     the        removal    of     illegal

reentrants.         Indeed, if that were the goal, supervised release

would rationally never be permitted for deportable aliens.                                   To

the contrary, § 5D1.1(c) appears to be aimed at eliminating the

bureaucratic machinery of supervised release in cases where it

is   unnecessary,         while    nonetheless      giving         district        courts   the

option of imposing it to provide an additional deterrence where

illegal reentry might likely follow.

       I would hold that a district court fulfills its procedural

obligations in these circumstances by “apply[ing] the relevant §

3553(a) factors to the specific circumstances of the case before

it.”     United States v. Carter, 564 F.3d 325, 328 (4th Cir.

2009).        And    when    a     court    imposes     supervised         release      on    a

deportable      alien,       the     relevant       §   3553(a)        factors        include

deterrence and protection of the public.                            The district court

would    need   to       “‘state    in   open   court’        the    particular       reasons

supporting      its      chosen     sentence.”          Id.    (citing        18    U.S.C.    §

3553(c)) (emphasis added).               But rather than requiring a district

court    to     repeat      its     justification        for        both     the     term    of

                                           - 12 -
imprisonment and the term of supervised release, I would find a

district court’s explanation procedurally reasonable as long as

it sufficiently justified the sentence as a whole.

       This is just the approach that every circuit has adopted up

until this point – including ours.             See, e.g., United States v.

Ramirez,      503    F.   App’x   226   (4th    Cir.   2013)    (per    curiam)

(affirming a sentence of supervised release for a deportable

alien even though the district court did not explicitly justify

the supervised release or discuss § 5D1.1(c)); United States v.

Deleon-Ramirez, No. 12-4642, 2013 U.S. App. LEXIS 20906 (4th

Cir.   Oct.    16,    2013)   (per   curiam)    (same);   United    States    v.

Sanchez-Mendez, 521 F. App’x 142 (4th Cir. 2013) (per curiam)

(same); United States v. Jimenez-Manuel, 494 F. App’x 411 (4th

Cir. 2012) (per curiam) (same); United States v. Alvarado, 720

F.3d 153, 158 (2d Cir. 2013) (“A district court is not required

explicitly to link its finding that added deterrence is needed

to its decision to impose a term of supervised release”); United

States v. Valdez-Cruz, 510 F. App’x 834, 840 (11th Cir. 2013)

(per curiam) (“Although Valdez-Cruz argues that the court failed

to give a case-specific reason for imposing a term of supervised

release, the district court specifically discussed the need for

deterrence in Valdez-Cruz’s case and the record supports the

court’s    determination”);       Dominguez-Alvarado,     695   F.3d    at   330

(finding      the    following    explanation     sufficient       to   justify

                                     - 13 -
supervised release for a deportable alien: “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”).

       I would hold further that the district court in the present

case “adequately explain[ed] the chosen sentence to allow for

meaningful appellate review and to promote the perception of

fair    sentencing.”             Gall    v.    United       States,       552   U.S.    38,   50

(2007).          The    district         court’s       “individualized             assessment”

included     a     careful          consideration            of     Bautista-Villanueva’s

criminal and personal history.                     Carter, 564 F.3d at 330. The

court noted that the sentence it was imposing was “sufficient

but not greater than necessary to reflect the seriousness of the

offense,     provide         just       punishment          and     adequate       deterrence,

promote respect for the law, and protect the public from further

crimes of the Defendant.”                It is clear from the record that the

district court imposed the term of supervised release because it

feared that Bautista-Villanueva would illegally return to the

United     States.           The     district      court          noted     that     Bautista-

Villanueva had illegally entered the United States twice in the

past, and it imposed, as a condition of the supervised release,

requirements       that       Bautista-Villanueva                 “cooperat[e]       with     ICE

officials” and, if deported, that he “not reenter the United

                                              - 14 -
States without express permission of the Attorney General, or

his/her designated representative.”   Given Bautista-Villanueva’s

history of illegal reentry, the district court’s imposition of

supervised release was reasonable.

     I would affirm.




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