                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 17-1633
                                      _____________

                            UNITED STATES OF AMERICA

                                              v.

                          CHRISTIAN GUERRERO-ALVAREZ,
                                           Appellant

                                      _____________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (D.C. No. 2-16-cr-00477-001)
                        District Judge: Hon. Legrome D. Davis
                                   _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 8, 2018

       Before: JORDAN, ROTH, Circuit Judges and STEARNS*, District Judge.

                                 (Filed: January 30, 2018)
                                     _______________

                                        OPINION**
                                     _______________



       *
       Honorable Richard G. Stearns, United States District Court Judge for the District
of Massachusetts, sitting by designation.
       **
         This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.

       Christian Guerrero-Alvarez pled guilty to illegal reentry after deportation. He now

appeals his sentence, arguing that the District Court committed procedural and

substantive errors when it sentenced him to thirty months of imprisonment followed by

three years of supervised release. We will affirm.

I.     BACKGROUND

       Guerrero-Alvarez is a Mexican citizen who does not have a lawful right to be in

the United States. He has been deported on eight prior occasions. Three of those

removals resulted in misdemeanor convictions for illegal entry in violation of 8 U.S.C.

§ 1325(a)(1). In October 2016, Immigration and Customs Enforcement apprehended

Guerrero-Alvarez after receiving information that he had yet again returned to the United

States unlawfully. He was indicted on one felony count of reentry after deportation in

violation of 8 U.S.C. § 1326(a) and (b)(l), and he pled guilty as charged.

       In the Presentence Investigation Report (“PSR”), Guerrero-Alvarez’s criminal

history included two convictions for driving under the influence and the three prior

convictions for illegal entry. Based on a total offense level of 13 and a criminal history

category of V, the PSR observed that the imprisonment range recommended in the United

States Sentencing Guidelines was thirty to thirty-seven months. The PSR also stated that

a violation of § 1326(a) and (b)(l) carries a supervised release term of one to three years,

a mandatory $100 special assessment, and a fine in the range of $5,500 to $55,000.




                                              2
Although Guerrero-Alvarez objected to a part of the PSR regarding a prior conviction,

there were no unresolved objections at the time of sentencing.

       He did, however, submit a sentencing memorandum in which he sought a

downward variance or departure because, in his view, “[b]oth his guideline calculations

and criminal history category are artificially elevated based on maximum sentences

which he never served, nor was in any danger of ever serving.” (App. at 50.) He also

said that a downward variance was warranted because he reentered the United States to

support his family, because of his positive work history, and because he does not pose a

threat to the public. In addition, he argued that he will likely remain in custody until his

eventual deportation, negating any necessity for a term of supervised release.

       The government responded that Guerrero-Alvarez’s criminal and deportation

history called for imprisonment within the guidelines range, and that supervised release

was appropriate. According to the government, only a “meaningful sentence of

imprisonment” would convey the severity of his criminal history and prior immigration

violations and would function as a deterrent. (App. at 63.)

       The District Court held a sentencing hearing on March 21, 2017, and, as noted

earlier, sentenced Guerrero-Alvarez to thirty months of imprisonment, three years of

supervised release, and a mandatory special assessment of $100. The Court rejected

Guerrero-Alvarez’s arguments for either a downward departure or variance and

explained: “With your history, I could have put you higher into guidelines. Trust me.

Because it’s outrageous. It’s so extreme that it really doesn’t give your lawyer much to



                                              3
argue on your behalf except her faith and hope in you and that doesn’t carry the day

today.” (App. at 67.)

       Regarding supervised release, the Court stated: “I would fully expect you to be

deported following the satisfaction of your sentence, but if for some reason you are not,

and you remain here, you’ll be on supervised release for three years.” (App. at 67.)

Although Guerrero-Alvarez mentioned in his sentencing memorandum that there is,

under § 5D1.1(c) of the guidelines, a presumption against supervised release for

deportable defendants, he did not object at the sentencing hearing to the Court’s

imposition of supervised release. He has timely appealed.

II.    DISCUSSION1

       In sentencing, district courts follow a familiar procedure: they calculate the

applicable guidelines range, rule on motions for departure, and finally, exercise their

discretion by considering the sentencing factors set out in 18 U.S.C. § 3553(a).2 United


       1
        The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
       2
           A court is to consider the following factors when imposing a sentence:

       (1) the nature and circumstances of the offense and the history and
       characteristics of the defendant;
       (2) the need for the sentence imposed --
               (A) to reflect the seriousness of the offense, to promote respect for
               the law, and to provide just punishment for the offense;
               (B) to afford adequate deterrence to criminal conduct;
               (C) to protect the public from further crimes of the defendant; and
               (D) to provide the defendant with needed educational or vocational
               training, medical care, or other correctional treatment in the most
               effective manner;
       (3) the kinds of sentences available;
                                              4
States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). When a sentence is challenged on

appeal, we evaluate the sentence first for procedural error and, if it is procedurally sound,

we review it for substantive reasonableness. United States v. Azcona-Polanco, 865 F.3d

148, 152 (3d Cir. 2017). Procedural errors, which include “failing to consider the

§ 3553(a) factors ... or failing to adequately explain the chosen sentence[,]” id. (quoting

United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc)), will generally

necessitate a remand for resentencing, id. “When reviewing for substantive

reasonableness, we will affirm [the sentence] unless no reasonable sentencing court

would have imposed the same sentence on that particular defendant for the reasons the

district court provided.” United States v. Mateo-Medina, 845 F.3d 546, 550 (3d Cir.

2017) (alteration in original) (internal quotation marks and citation omitted).

       Guerrero-Alvarez argues that the District Court erred in three ways. First, he

claims that it procedurally erred by failing to adequately consider the sentencing factors

listed in § 3553(a). Second, he contends that it also procedurally erred by failing to

meaningfully address the presumption in guidelines § 5D1.1(c) disfavoring supervised




       (4) the kinds of sentence and the sentencing range established for ... the
       applicable category of offense committed by the applicable category of
       defendant as set forth in the guidelines ... ;
       (5) any pertinent policy statement ... issued by the Sentencing Commission
       ... ;
       (6) the need to avoid unwarranted sentence disparities among defendants
       with similar records who have been found guilty of similar conduct; and
       (7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a)(1)-(7).
                                              5
release for deportable immigrants. Third, he says that the Court substantively erred by

imposing a term of supervised release. Those arguments are unpersuasive.

       A.     The District Court did not commit plain error in sentencing Guerrero-
              Alvarez to imprisonment.

       Guerrero-Alvarez contends that the District Court committed procedural error by

failing to specifically mention the statutory sentencing factors set forth in § 3553(a) when

sentencing him to thirty months of imprisonment. Because Guerrero-Alvarez failed to

object to the District Court’s explanation of the § 3553(a) factors at the sentencing

hearing, we review this issue for “plain error.” Azcona-Polanco, 865 F.3d at 151 (citing

Fed. R. Crim. P. 52(b)); United States v. Flores-Mejia, 759 F.3d 253, 256 (3d Cir. 2014).

       “The plain error test requires (1) an error; (2) that is clear or obvious and

(3) affected the defendant’s substantial rights, which in the ordinary case means he or she

must show a reasonable probability that, but for the error, the outcome of the proceeding

would have been different.” Azcona-Polanco, 865 F.3d at 151 (internal quotation marks

and citation omitted). If those three conditions are met, a court will exercise its discretion

to correct such an error if the error “seriously affects the fairness, integrity or public

reputation of judicial proceedings.” Id. (citation omitted).

       In considering the § 3553(a) factors, a sentencing judge “should set forth enough

to satisfy the appellate court that he has considered the parties’ arguments and has a

reasoned basis for exercising his own legal decisionmaking authority.” Id. at 152-53

(citation omitted). “Although there is no uniform threshold, this explanation must be

sufficient for us to see that the particular circumstances of the case have been given


                                               6
meaningful consideration within the parameters of § 3553(a).” Id. at 153 (internal

quotation marks and citation omitted). “[A] district court need not discuss and make

findings as to each of the § 3553(a) factors so long as the record makes clear that the

court has taken them into account.” United States v. Clark, 726 F.3d 496, 502 (3d Cir.

2013) (internal quotation marks and citation omitted).

       Here, Guerrero-Alvarez cannot establish that the District Court committed plain

error. The record, in its totality, illustrates that the Court properly considered the

statutory factors. At the plea hearing, the Court explained to Guerrero-Alvarez that it

“would come up with ... the most fair and most just sentence under the circumstances of

this case” by basing its decision “upon the sentencing guidelines and the traditional

sentencing factors[.]” (App. at 20.) Then, at the sentencing hearing, in addition to

weighing Guerrero-Alvarez’s deportation and criminal history, the Court acknowledged

Guerrero-Alvarez’s personal history and characteristics, considered whether or not a term

of confinement would serve a deterrent purpose, and noted that Guerrero-Alvarez’s

benign intentions to support his family did not absolve him of his decision to break the

law. Indeed, the District Court emphasized Guerrero-Alvarez’s history of repeated

immigration violations when it noted that his past would qualify him for a higher

sentence, although the Court chose to sentence him to the bottom of the guidelines range.

The record indicates that the District Court adequately considered the § 3553(a) factors,

and there was no procedural error, much less plain error.




                                               7
       B.     The District Court did not commit plain error in sentencing Guerrero-
              Alvarez to supervised release.

       Guerrero-Alvarez also says that the District Court erred by imposing a term of

supervised release, notwithstanding guidelines § 5D1.1(c)’s presumption disfavoring

supervised release for removable immigrants. Our standard of review on this issue is a

matter of dispute.

       The government says that we should review for plain error because Guerrero-

Alvarez failed to register his objection at the sentence hearing. Guerrero-Alvarez

concedes that he failed to object on the basis of § 5D1.1(c) at the sentencing hearing, but

he contends that we should nevertheless review his claim for abuse of discretion because

United States v. Azcona-Polanco, a decision published after he was sentenced and in

which we clarified the procedural requirements associated with § 5D1.1(c), announced a

new rule that he could not have known about at his sentencing hearing. 865 F.3d at 153-

54; cf. Flores-Mejia, 759 F.3d at 259 (reviewing a claim for abuse of discretion because

the court did not apply retroactively a new rule that would have required the defendant to

have objected at sentencing).3 We disagree with that argument.


       3
        Guerrero-Alvarez also argues that he objected to supervised release in his
sentencing memorandum, but that argument fails for three reasons. First, in his
sentencing memorandum, Guerrero-Alvarez raised the issue that § 5D1.1(c) includes a
presumption against supervised release for deportable defendants but he did not specify
the argument he makes now. See United States v. Joseph, 730 F.3d 336, 341 (3d Cir.
2013) (raising an issue is insufficient for preserving arguments relating to that issue on
appeal). Second, even if the argument had been raised in the sentencing memorandum, a
procedural objection to a sentence cannot be made until the sentence is actually imposed.
See Flores-Mejia, 759 F.3d at 256-57 (“[A] defendant must raise any procedural
objection to his sentence at the time the procedural error is made ... . Until sentence is
imposed, the error has not been committed. ... Simply put, a defendant has no occasion to
                                             8
       Neither United States v. Azcona-Polanco nor United States v. Flores-Mejia

excuses Guerrero-Alvarez’s failure to object to a term of supervised release. Before

those cases, district courts were already required to explain sentences of supervised

release. United States v. Joline, 662 F.3d 657, 659-60 (3d Cir. 2011). Azcona-Polanco

simply clarified what an adequate explanation under § 5D1.1(c) entails. 865 F.3d at 153-

54. In that case itself, we applied plain error review because the defendant failed to

object at the sentencing hearing to the district court’s imposition of supervised release.

Id. at 154. In contrast, Flores-Mejia announced a new rule requiring a defendant to raise

any procedural objection to his sentence at the time the sentence was imposed, and the

court declined to apply retroactively that new burden on the defendants because they had

“not been warned that they had a duty to object to the sentencing court’s procedural error

after sentencing.” 759 F.3d at 256, 259.

       Here, even without the clarification given in Azcona-Polanco, Guerrero-Alvarez

was on notice that he should either object to the term of supervised release at sentencing

or otherwise seek additional explanation for the imposition of supervised release. He did

neither. Therefore, because he failed to preserve his procedural objection at the time the

District Court imposed a sentence of supervised release, we review for plain error.

       A court’s decision to impose a term of supervised release is discretionary unless a

statute makes such a term mandatory. Azcona-Polanco, 865 F.3d at 151 (citing 18 U.S.C.


object to the district court’s inadequate explanation of the sentence until the district court
has inadequately explained the sentence.”). Third, although the PSR did not note the
presumption against supervised release for deportable defendants, Guerrero-Alvarez
forfeited any objections to the PSR by failing to timely raise them.
                                              9
§ 3583(a); U.S.S.G. § 5D1.1 & cmt. n.1). The court’s discretion is guided by the familiar

§ 3553(a) factors. Id. (citing 18 U.S.C. § 3583(c)). A deportable immigrant, however, is

“presumptively exempt from the discretionary imposition of supervised release[.]” Id.

(citing U.S.S.G. § 5D1.1(c)). The comments following § 5D1.1(c) explain why:

       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.

U.S.S.G. § 5D1.1(c) cmt. n.5.

       Even if we assume that the District Court here committed an error that is clear and

obvious by failing to render a fuller explanation when imposing a term of supervised

release, Guerrero-Alvarez’s substantial rights were not affected.4 To demonstrate that an

error affected his substantial rights, Guerrero-Alvarez “must show a reasonable

probability that, but for the error, the outcome of the proceeding would have been

different.” Azcona-Polanco, 865 F.3d at 151 (internal quotation marks and citation

omitted). He suggests that the District Court’s “speculation that authorities might fail to

       4
         In Azcona-Polanco, which, again, was published after Guerrero-Alvarez was
sentenced, we held that a district court “must explain and justify the imposition of
supervised release on a deportable immigrant” and “state the reasons in open court for
imposing ... [such a term] so that the appellate court is not left to speculate about the
reasons.” 865 F.3d at 153 (internal quotation marks and citations omitted). Moreover,
we said that the district court “should directly address the presumption against imposing
supervised release and provide the court’s reasoning for taking a different course of
action in the case before it.” Id. (internal quotation marks and citation omitted). The
court need not “cite the guidelines section, but rather should acknowledge and address its
substance.” Id. (internal quotation marks and citation omitted).
                                             10
deport [him]” is an impermissible reason to contravene the presumption against imposing

supervised release. But the guidelines and our precedent make clear that a district court

may reject that presumption with regard to a particular defendant, “if the court determines

[that supervised release] would provide an added measure of deterrence and protection

based on the facts and circumstances of a particular case.” Id. at 154 (quoting U.S.S.G.

§ 5D1.1(c) cmt. n.5).

       In Azcona-Polanco, we said that “any supposed deficiency in the [district court’s]

explanation [regarding the supervised release sentence] would not have affected [the

defendant’s] substantial rights given all of the facts cited by the District Court[.]” Id.

Those facts included “his serious criminal history; that he previously defied an order of

removal; that he was ordered removed a second time; that after being deported he

illegally reentered the United States; and that he purchased false identification and

assumed an alias to remain in the United States illegally.” Id. at 154-55. Like the

defendant in that case, Guerrero-Alvarez has been ordered removed from the United

States repeatedly, has illegally reentered the United States after being deported, and has a

criminal history, including being convicted several times of immigration offenses. Given

those facts, it seems very unlikely that a lengthier explanation would have resulted in a

different decision about supervised release. Thus, Guerrero-Alvarez has not established a

violation of his substantial rights, and the procedural challenge to his sentence of

supervised release fails.




                                              11
       C.        The District Court did not abuse its discretion in its substantive
                 decision to sentence Guerrero-Alvarez to supervised release.

       Finally, Guerrero-Alvarez argues that the District Court’s sentence of supervised

release was substantively unreasonable. We review the substantive reasonableness of a

sentence for abuse of discretion. Id. at 151 (citing Gall v. United States, 552 U.S. 38, 51

(2007)). Our inquiry is highly deferential, see Tomko, 562 F.3d at 568, and, when

evaluating “substantive reasonableness, we will affirm [the sentence] unless no

reasonable sentencing court would have imposed the same sentence on that particular

defendant for the reasons the district court provided.” Mateo-Medina, 845 F.3d at 550

(alteration in original) (internal quotation marks and citation omitted). The District Court

sentenced Guerrero-Alvarez to three years of supervised release – the maximum under

the calculated range – in the event that Guerrero-Alvarez is not deported upon his release

from custody. The record in its totality demonstrates that the District Court did not abuse

its discretion in concluding that Guerrero-Alvarez’s repeated illegal entries into the

United States warranted the additional deterrence that supervised release provides. The

Court here made “the type of individualized assessment that Gall demands, and to which

we must defer.” Azcona-Polanco, 865 F.3d at 155 (internal quotation marks and citation

omitted). Thus, Guerrero-Alvarez’s substantive challenge to his term of supervised

release fails.

III.   CONCLUSION

       For the reasons stated, we will affirm the District Court’s judgment of sentence.




                                              12
