     Case: 13-40146      Document: 00512581205         Page: 1    Date Filed: 04/01/2014




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

                                                                                     FILED
                                      No. 13-40146                                April 1, 2014
                                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                                            Clerk


                                                 Plaintiff - Appellee
v.

JESUS ORTA,

                                                 Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                           U.S.D.C. No. 2:12-CR-812-1


Before HIGGINBOTHAM, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Jesus Orta pleaded guilty to one count of possession of child pornography
in violation of 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2), and 2256(8)(A). He appeals
the district court’s imposition of a lifetime term of supervised release,
contending that it is both procedurally and substantively unreasonable. We
AFFIRM.
                                     I. Background
       Law enforcement officers received a tip from Orta’s brother that Orta
possessed child pornography. A search of the apartment where Orta lived and


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40146
a nearby dumpster revealed printed images, digital images, and digital videos
of children involved in sexually explicit conduct. Officers recovered 398 still
images and 289 videos of child pornography attributable to Orta. Orta later
confessed that the images and videos belonged to him.
      Orta was indicted on seven counts of possession of child pornography in
violation of 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2), and 2256(8)(A), and he pleaded
guilty to one count pursuant to a plea agreement. At his re-arraignment, the
district court informed him that the maximum possible punishment that could
be assessed against him was ten years of imprisonment, a fine of up to
$250,000, a $100 special assessment, and a lifetime term of supervised release,
which the court stated it “give[s] most of these occasions actually.”
      Prior to sentencing, a Probation Officer prepared a Presentence
Investigation Report (“PSR”), which listed Orta’s base offense level as eighteen
and included the following offense-level increases: two levels for material
involving a prepubescent minor or a minor who had not attained the age of
twelve years; four levels for material portraying sadistic or masochistic conduct
or other depictions of violence; two levels for the use of a computer or an
interactive computer service for the possession, transmission, receipt, or
distribution of the material; and five levels because the offense involved 600 or
more images. The PSR further included a two-level increase for obstruction of
justice and a three-level decrease for acceptance of responsibility. Orta’s total
offense level was thirty, and he had a criminal history score of I. Orta’s
Guidelines imprisonment range was 97 to 120 months, and his Guidelines
range for a term of supervised release was five years to life.          The PSR
recommended a lifetime term of supervised release pursuant to the policy
statement of U.S. SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 5D1.2(b)
(2012) (“If the instant offense of conviction is a sex offense, however, the
statutory maximum term of supervised release is recommended.”). The PSR
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also provided details of Orta’s employment record, including that he was a
tutor at a high school from 2001 until his arrest in 2012 and that he had
previously worked at a runaway shelter as a counselor for young teens.
      At sentencing, both parties requested a term of imprisonment of 97
months. The Government further requested that the district court impose a
lifetime term of supervised release in light of Orta’s work history with minors.
The Government expressed “grave concerns about a person who has essentially
a sexual interest in children, and then who has taken the opportunity to
professionally surround himself with the objects of his desire.” Orta objected
to the imposition of a lifetime term of supervised release, and requested a ten-
year term. He asserted that the Government’s request was unfounded since
there had been no prior allegations of misconduct. The district court, however,
shared the Government’s concerns and asked Orta questions about the nature
of his work, including the ages of the children that he had worked with and the
ages of the children that he could have come in contact with in his places of
employment.
      The district court ultimately adopted the PSR and sentenced Orta to 110
months of imprisonment followed by a lifetime term of supervised release. The
court stated that it had considered the factors in 18 U.S.C. § 3553(a) and that
the primary reasons for the sentence were to protect the public and deter Orta
from future criminal conduct. The court explained that the sentence was
“justified in someone who has made his life’s ambition or practice to work
around children.” At the end of the sentencing hearing, Orta’s counsel stated
that he “still maintain[ed his] objection to the length of the period of supervised
release for the reasons stated.” Orta timely appealed the imposition of a
lifetime term of supervised release.




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                                  II. Discussion
     We review a sentence for reasonableness, first considering whether the
district court committed significant procedural error, and then reviewing the
sentence for substantive reasonableness. Gall v. United States, 552 U.S. 38,
51 (2007).
      Orta first argues that his term of supervised release is procedurally
unreasonable because the district court did not adequately explain the need
for the sentence imposed. While Orta objected to his sentence in the district
court on substantive grounds, he never requested further explanation from the
district court or objected to the adequacy of the district court’s explanation.
Accordingly, we review this argument for plain error. See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). To establish plain
error, Orta must show an error that is clear or obvious and that affects his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he
makes this showing, we may remedy the error if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
      A district court commits procedural error when, inter alia, it fails to
adequately explain the chosen sentence. Gall, 552 U.S. at 51. The district
court should provide enough explanation to show that it “has considered the
parties’ arguments and has a reasoned basis for exercising [its] own legal
decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007).
      At     the   sentencing   hearing,   the   district    court   considered   the
Government’s argument for why a lifetime term of supervised release was
necessary and likewise considered Orta’s objection as to why a lifetime term
was unnecessary. The district court then examined the bases for the parties’
arguments by questioning Orta as to the nature of his work and the extent of
his contact with minors. The district court’s statements during this exchange
made clear that the court accepted the Government’s argument and rejected
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Orta’s. It is not necessary for the court to restate counsel’s arguments to
demonstrate that it has considered them. See United States v. Bonilla, 524
F.3d 647, 657 (5th Cir. 2008)(assessing adequacy of district court’s stated
reasons “in the context of the full sentencing hearing”). Further, when
imposing Orta’s sentence, the district court explained that it had considered
the 18 U.S.C. § 3553(a) factors, that the primary reasons for the sentence were
to protect the public and deter Orta from future criminal conduct, and that a
lifetime term of supervised release was “justified” because Orta had “made his
life’s ambition or practice to work around children,” which the court found
“disturbing.”
       In short, it is evident from the record that the district court considered
the parties’ arguments and provided a reasoned basis for its decision. See Rita,
551 U.S. at 356. What is more, a lengthy explanation was unnecessary since
the district court simply applied the Guidelines to Orta’s case. See id. at 357;
see also U.S.S.G. § 5D1.2(b) (“If the instant offense of conviction is a sex offense,
however,     the    statutory     maximum        term    of   supervised      release    is
recommended.”).        Orta, however, contends that the district court erred
because, in explaining the maximum possible punishment that could result
from his guilty plea at re-arraignment, the court stated that it imposed a
lifetime term of supervised release “most of these occasions actually.” 1 He
analogizes his case to Alvarado and Fraga, both cases in which we vacated a
lifetime term of supervised release when the same district judge that sentenced


       1 While Orta includes this argument in the section of his brief devoted to the
substantive reasonableness of his sentence, it goes to the procedural-reasonableness issues
of whether the district court failed to consider the proper factors or failed to explain the
reason for the sentence. See Gall, 552 U.S. at 51 (explaining that procedural error in
sentencing includes “failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the chosen
sentence”).
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Orta made a similar statement during re-arraignment. See United States v.
Alvarado, 691 F.3d 592, 598 (5th Cir. 2012); United States v. Fraga, 704 F.3d
432, 441–42 (5th Cir. 2013) (applying Alvarado).
       Nevertheless, both cases are distinguishable because in each instance
the district court also failed to explain its decision or demonstrate that it
considered the facts and circumstances surrounding the individual defendant,
thus giving rise to an inference that the court automatically imposed a lifetime
term of supervised release. See Alvarado, 691 F.3d at 598 (“[T]he sentencing
judge erred by automatically imposing a lifetime sentence of supervised release
without engaging in any analysis of the circumstances surrounding Alvarado’s
crime.”); Fraga, 704 F.3d at 442 (“[A]s in Alvarado, at the time she imposed
the sentence, the sentencing judge did not give reasons for her decision to
impose a lifetime term of supervised release.”). By contrast, in Orta’s case, the
district court’s explanation and exchange with the parties at sentencing make
clear that it found a lifetime term of supervised release necessary because of
the specific facts and circumstances of Orta’s case, namely that he had shown
an interest in the sexual abuse of minors and pursued employment where he
would have constant contact with minors. Accordingly, unlike in Alvarado and
Fraga, the district court’s actions do not suggest that it automatically imposed
a lifetime term of supervised release without considering the relevant factors. 2




       2  For this reason, Orta’s case is analogous to United States v. Ortega, in which we
upheld the same district judge’s adequately explained imposition of a lifetime term of
supervised release even though a similar statement was made at re-arraignment. 485 F.
App’x 656, 659 (5th Cir. 2012) (unpublished) (“The district court was setting forth . . . the
possible ramifications of entering a guilty plea, and the district court’s statement that it
usually imposes a lifetime term of supervised release, when that is what the Guidelines
recommend, does not show that Ortega’s circumstances were not considered.”). Although
Ortega is not “controlling precedent,” it is “persuasive authority.” Ballard v. Burton, 444
F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).

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                                       No. 13-40146
Orta’s arguments fail to show clear or obvious procedural error by the district
court.
         Orta also contends—without citing any supporting authority—that his
lifetime term of supervised release is substantively unreasonable because the
district court improperly based it on the fact that he sought and maintained
employment around children even though there were no allegations of
misconduct in relation to this work. We reject this argument, as 18 U.S.C.
§ 3553(a)(1) requires a district court to consider “the nature and circumstances
of the offense and the history and characteristics of the defendant.” Here, the
district court’s decision was based on (1) the specific nature of Orta’s offense,
which the court found demonstrated that Orta got “sexual gratification out of
little children being sexually abused,” and (2) Orta’s personal characteristics,
including, as found by the district court, that he had “made his life’s ambition
or practice to work around children.” 3 The district court already considered
Orta’s argument for why these factors should be weighed differently, and we
decline to reweigh them. See United States v. Camero-Renobato, 670 F.3d 633,
636 (5th Cir. 2012). Orta’s substantive-reasonableness argument fails to rebut
the presumption of reasonableness that applies to his within-Guidelines term
of supervised release. See United States v. Cancino-Trinidad, 710 F.3d 601,
607–08 (5th Cir. 2013). We therefore find no abuse of discretion in the district
court’s decision. See Gall, 552 U.S. at 51.
         AFFIRMED.




         3Orta’s related argument, that the district court also improperly based its decision
on a general concern about the recidivism of pedophiles, is likewise without merit. See United
States v. Allison, 447 F.3d 402, 407 (5th Cir. 2006) (upholding a lifetime term of supervised
release that was based on “the general notion that pedophiles are typically recidivists”).
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