                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                    May 9, 2014
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 13-1280
 v.                                          (D.Ct. No. 1:12-CR-00238-WYD-1)
                                                          (D. Colo.)
 BLAS HUMBERTO GUTIERREZ-
 LUJAN, a/k/a Able Gutierrez, a/k/a
 Raudel Rodriguez,

          Defendant-Appellant.
                       ______________________________

                                ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

submitted without oral argument.

      Blas Humberto Gutierrez-Lujan appeals his three-year term of supervised


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
release on grounds it is procedurally unreasonable under a plain error review. He

claims the district court failed to address whether it would act as an adequate

deterrent and erroneously believed it did not have authority under United States

Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) § 5D1.1(c) to forgo imposing

such supervised release. Exercising our jurisdiction under 28 U.S.C. § 1291, we

affirm his sentence.

                       I. Factual and Procedural Background

      Mr. Gutierrez-Lujan, a Mexican citizen, pled guilty to being an illegal alien

in possession of a firearm in violation of 18 U.S.C. § 922(g)(5). In his plea

agreement, he and the government agreed the court could impose no more than

three years of supervised release for the crime committed, as provided in U.S.S.G.

§ 5D1.2. They also stipulated that in committing the crime charged he sold three

rifles, four magazines, and fifty-eight rounds of ammunition to undercover federal

agents. In calculating his sentence, the probation officer applied a four-level

enhancement to his offense level under U.S.S.G. § 2K2.1(b)(5) because Mr.

Gutierrez-Lujan “engaged in the trafficking of firearms.” The probation officer

then determined his total offense level of 31, together with his criminal history

category of I, resulted in a recommended advisory Guidelines range of 108 to 135

months imprisonment. However, because the maximum sentence for the crime

charged is 120 months imprisonment, he adjusted the Guidelines range down to

108 to 120 months imprisonment. The probation officer advised that the

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Guidelines term of supervised release was at least one year but not more than

three years under § 5D1.2(a)(2) but also pointed out that pursuant to § 5D1.1(c),

“[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.” He then

recommended the district court impose a term of supervised release of one year

for the purpose of monitoring any further illegal reentry by Mr. Gutierrez-Lujan

based on the seriousness of his offense, his ties to the United States, and his

previous deportation. Neither the government nor Mr. Gutierrez-Lujan formally

objected to the presentence report.

      At the sentencing hearing, the government requested a two-level downward

departure for a revised Guidelines range of fifty-seven to seventy-one months and

a recommended sentence of fifty-seven months incarceration, which Mr.

Gutierrez-Lujan supported and the district court imposed. Before imposing the

sentence, the district court explained the advisory nature of the Guidelines and its

obligation to take into account the sentencing factors in 18 U.S.C. § 3553(a) in

arriving at a sentence sufficient, but not greater than necessary, to accomplish its

objectives. With respect to supervised release, the district court noted that

because the Office of Immigration and Customs Enforcement placed a detainer on

Mr. Gutierrez-Lujan, it was “likely that he will be deported” and further stated, in

apparent reference to § 5D1.1(c):

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      Now, the problem is this case is not an illegal reentry case, it’s a
      little different, so I don’t think that guideline really applies. I think
      that a term of supervised release should be imposed ....

             ....

             And it’s likely that he will be deported .... [N]onetheless I
      think a period of supervised release is warranted. And so, really, the
      question is what it should be. Should it be one year, two years, three
      years?

R. Vol. 4 at 41-42 (emphasis added). The government responded by seeking a

term of three years based on “the serious circumstances underlying the crime,”

stating:

             Although the defendant ultimately pled guilty only to being an
      illegal alien in possession of a firearm, we’re really dealing with the
      trafficking of firearms here as is noted by the four-level
      enhancement. And as the Court has pointed out, the amendment to
      the [G]uidelines related to supervised release is only related to the
      illegal reentry count of conviction, not to this count of conviction or
      to the underlying conduct that led us into court today.

             So in order to adequately deter this defendant from illegally
      returning to the United States, committing new crimes here, and
      certainly from engaging in the conduct that led him into this federal
      courtroom, we would seek the full term of supervised release ....

R. Vol. 4 at 42-43. Thereafter, the district court imposed a three-year term of

supervised release, and Mr. Gutierrez-Lujan made no contemporaneous objection

to either the government’s argument in support of a three-year term or the district

court’s imposition of such supervised release.

                                    II. Discussion

      On appeal, Mr. Gutierrez-Lujan appeals the district court’s imposition of a

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three-year term of supervised release on grounds it is procedurally unreasonable

under a plain error review. He bases this claim on grounds the district court: 1)

failed to address whether “he would be adequately deterred” by “new

prosecution” if he “returned to the United States”; and 2) erroneously believed it

did not have authority under U.S.S.G. § 5D1.1(c) to forgo imposing supervised

release.

      We review a sentence for reasonableness, giving deference to the district

court under an abuse of discretion standard. See United States v. Smart, 518 F.3d

800, 802, 805-06 (10 th Cir. 2008). “Our appellate review for reasonableness

includes both a procedural component, encompassing the method by which a

sentence was calculated, as well as a substantive component, which relates to the

length of the resulting sentence.” Id. at 803. Mr. Gutierrez-Lujan is only

contesting the procedural component regarding the calculation of his supervised

release, which “addresses whether the district court incorrectly calculated or

failed to calculate the Guidelines sentence, treated the Guidelines as mandatory,

failed to consider the § 3553(a) factors, relied on clearly erroneous facts, or failed

to adequately explain the sentence.” United States v. Huckins, 529 F.3d 1312,

1317 (10 th Cir. 2008). With regard to the explanation a district court provides, it

must “‘state in open court the reasons for its imposition of the particular

sentence’” and satisfy us that it “has considered the parties’ arguments and has a

reasoned basis for exercising [its] own legal decisionmaking authority.” Rita v.

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United States, 551 U.S. 338, 356 (2007) (quoting 18 U.S.C. § 3553(c)). We have

said this occurs when the sentencing court relied on a party’s argument or

reasoning in support of a particular sentence and no objection is raised. See id. at

356-57. In determining whether the district court properly applied the Guidelines

in calculating the sentence, we review its legal conclusions de novo and its

factual findings for clear error. See United States v. Ruby, 706 F.3d 1221, 1225

(10 th Cir. 2013). However, in instances, like here, where objections to procedural

reasonableness are not contemporaneously raised, we review them for plain error. 1

Id. at 1225-26.

      In this case, Mr. Gutierrez-Lujan received a conviction under 18 U.S.C.

§ 922(g)(5) for unlawful possession by an illegal alien of firearms and

ammunition punishable with imprisonment of not more than ten years and

constituting a Class D felony. See 18 U.S.C. §§ 924(a)(2) and 3559(a)(4). If, as

here, the statute violated does not expressly require a term of supervised release,

a court may nevertheless include a term of supervised release as part of the

sentence–which, for a Class D felony, is not more than three years. See 18 U.S.C.

§ 3583(a) and (b)(2). Similarly, under the Guidelines, the court “shall order a

term of supervised release to follow imprisonment” when required by statute or


      1
         Under our plain error review, Mr. Gutierrez-Lujan must demonstrate: 1)
there is an error; 2) that is plain; 3) which affects his substantial rights; and 4)
which seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See Ruby, 706 F.3d at 1225-26.

                                         -6-
when a sentence of imprisonment is more than one year. See U.S.S.G.

§ 5D1.1(a). However, as an exception, § 5D1.1(c) advises “[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.” One express reason not to follow

this exception is provided in the commentary to § 5D1.1(c), which advises the

court to consider imposing a term of supervised release if it “determines it would

provide an added measure of deterrence and protection based on the facts and

circumstances of a particular case.” U.S.S.G. § 5D1.1 cmt. n.5. Similarly, in

considering whether to include a term of supervised release, the court is also

required to consider the factors set forth in § 3553(a), including whether it would

act as a deterrent to future crimes. See 18 U.S.C. §§ 3553(a)(2)(B) and 3583(c).

      In this case, a review of the record, including the sentencing transcript,

reveals the district court reviewed the presentence report and was aware, as

discussed therein, that § 5D1.1(c) states supervised release should not ordinarily

be imposed when the defendant is a deportable alien who likely will be deported

after imprisonment. However, the district court stated its belief a term of release

“should” be imposed and was “warranted” even if it was “likely that he [would]

be deported.” Nowhere did the district court indicate its belief that the Guidelines

are not advisory or that it must impose a term of supervised release, as now

argued by Mr. Gutierrez-Lujan. As a result, we cannot say the district court acted

                                         -7-
under the misguided belief it did not have authority under § 5D1.1(c) to forgo

imposing supervised release. We also note the statement in subsection (c), that a

court “ordinarily” should not impose a term of supervised release where the

defendant is likely to be deported, is not mandatory, and the sentencing court may

elect, as it did here, to impose a term of supervised release where it “would

provide an added measure of deterrence and protection based on the facts and

circumstances of a particular case.” United States v. Dominguez-Alvarado, 695

F.3d 324, 329 (5 th Cir. 2012).

      As to the particular facts and circumstances in this case warranting

supervised release, we agree with the district court that this is not a simple illegal

reentry case, but it involves an illegal alien in possession of firearms where the

underlying conduct involved the trafficking of multiple firearms and ammunition.

It is apparent the district court, in imposing a three-year term of supervised

release, relied on the government’s argument such a term of supervised release

was necessary for the purpose of adequately deterring Mr. Gutierrez-Lujan “from

illegally returning to the United States, committing new crimes here, and certainly

from engaging in the conduct that led him into this federal courtroom.” A full

reading of the transcript, together with the circumstances presented, clearly

indicates the district court believed supervised release would deter Mr. Gutierrez-

Lujan from engaging in future crimes, including the serious offense of trafficking

firearms. Given Mr. Gutierrez-Lujan offered no objection or argument with

                                          -8-
regard to either the government’s recommendation for a three-year term or its

argument in support of such a term, or even to imposition of a three-year term,

the district court was not required, as Mr. Gutierrez-Lujan now contends, to

provide any further explanation as to whether he would be adequately deterred by

the prospect of further prosecution if he returned to the United States. Because it

is evident the district court relied on the government’s reasoning of deterrence for

the imposition of a three-year term of supervised release, we are able to afford

meaningful review, and deterrence is a sufficient reason under both 18 U.S.C.

§ 3553(a)(2)(B) and the commentary to U.S.S.G. § 5D1.1(c) for imposition of

such a term of supervised release.

      For these reasons, we cannot say the district court committed an error, plain

or otherwise, in imposing a three-year term of supervised release. However, even

if we concluded an error occurred with respect to the district court’s explanation

of why a three-year term of supervised release was warranted or whether the

§ 5D1.1(c) exception applied, Mr. Gutierrez-Lujan has not shown such an error

affected the outcome of the proceedings or that there is a strong possibility he

would have received a significantly lower sentence absent such an error. In other

words, nothing in the record or presented by Mr. Gutierrez-Lujan persuades us he

would have received a lesser term of supervised release, or even no term of

supervised release, if the district court had expressly acknowledged its authority

to forego supervised release under § 5D1.1(c) or provided a more thorough

                                         -9-
explanation of the deterrent effect of such supervised release.

                                  III. Conclusion

      Accordingly, we AFFIRM Mr. Gutierrez-Lujan’s three-year term of

supervised release.

                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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