                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-2732
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                                 AMADU BARRY,
                                             Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                            (E.D. Pa. No. 2-14-cr-00272-007)
                      District Judge: Honorable Timothy J. Savage
                      ____________________________________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  on October 5, 2017

               Before: AMBRO, KRAUSE, and SCIRICA, Circuit Judges

                            (Opinion filed: November 9, 2017)
                                      ___________

                                        OPINION*
                                       ___________

KRAUSE, Circuit Judge.

       Amadu Barry appeals an order of the District Court revoking his supervised

release and imposing a sentence of incarceration followed by a new term of supervised


       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
release. He claims that the District Court committed procedural error at sentencing when

it failed to consider that, per the Sentencing Guidelines, supervised release ordinarily is

inappropriate for non-citizen defendants like Barry who are likely to be removed from the

United States after release from incarceration. See U.S.S.G. § 5D1.1(c). We will affirm.

                                              I.

        Barry is a citizen of Liberia who, at all times relevant, was living in the United

States as a lawful permanent resident. In January 2015, he pleaded guilty to two counts

of a superseding indictment charging him with credit card fraud, one count charging him

with attempted credit card fraud, and one count charging him with conspiracy, all in

violation of federal law. The District Court imposed a sentence of time served, plus four

concurrent, three-year terms of supervised release. Conditions of Barry’s supervised

release included that he refrain from committing new crimes and that he “report to the

probation officer in a manner and frequency directed by the court or probation officer.”

JA 3.

        Around seven months into his terms of supervised release, Barry was arrested in

Delaware County, Pennsylvania, by local law enforcement for possession of marijuana

and on suspicion of using fraudulent credit cards. Soon after, Barry failed to report to his

federal probation officer to discuss the new arrest. Consequently, the probation officer

lodged a petition with the District Court charging Barry with two violations of his

supervised release.1 It conducted a hearing, at the close of which it sustained both


        1
         In response, the District Court issued a bench warrant. When the U.S. Marshals
arrested Barry pursuant to that warrant, they found in his possession “prepaid visa cards
                                               2
charges, revoked Barry’s supervised release, and imposed a Guidelines-range sentence of

14 months of imprisonment, to be followed by a new, 20-month term of supervised

release.2 Barry appealed.

                                            II.3

       Barry argues on appeal that it was “procedurally unreasonable” for the District

Court to impose “a new term of supervised release in light of U.S.S.G. § 5D1.1(c).”

Appellant’s Supp. Br. at 2. Section 5D1.1(c) provides that a “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.” The District Court did not address that presumption against supervised

release, and Barry contends that the District Court thus contravened United States v.

Azcona-Polanco, 865 F.3d 148 (3d Cir. 2017), which issued during the pendency of this

appeal. There we held that “a district court must ‘explain and justify’ the imposition of

supervised release on a deportable immigrant”; while explicit citation of Section 5D1.1(c)




with no names on them,” cash, and drugs. JA 29.
       2
         At the hearing, Barry admitted that he did not report to the probation officer as
directed, and there was essentially unrebutted testimony that Barry was, at the time of the
underlying arrest, in possession of drugs and stolen or counterfeit access devices. In
addition, the probation officer testified that Barry had been prosecuted on similar charges
in Chester County, Pennsylvania, and recently had failed to appear in court there on a
suspected violation of state probation.
       3
        The District Court had jurisdiction under 18 U.S.C. §§ 3231 and 3583(e). We
have appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
                                             3
is not required, the district court at a minimum must directly address the substance of that

Guideline. Id. at 153 (citation omitted).

       A determination that a district court committed procedural error at sentencing—

e.g., “failing to adequately explain the chosen sentence”—typically would result in a

remand for resentencing. Azcona-Polanco, 865 F.3d at 152. But here the lone issue

raised by Barry on appeal was not first presented to the District Court. As a result, he

must run the gauntlet of plain error review. See Fed. R. Crim. P. 52(b); cf. United States

v. Flores-Mejia, 759 F.3d 253, 255 (3d Cir. 2014) (en banc). “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 (citation omitted). If that test is satisfied,

we may correct the error if it “seriously affects the fairness, integrity or public reputation

of judicial proceedings.” Id.

                                             III.

       We agree with Barry that he was made to serve a new term of supervised release

without an adequate explanation by the District Court of its divergence from the Section

5D1.1(c) presumption.4 But even if that constituted clear or obvious error, cf. id. at 154,


       4
        Section 5D1.1.(c), which was neither discussed by the parties at sentencing nor
considered at all by the District Court, applies to Barry given his immigration status,
criminal history, and other information available in the Presentence Investigation Report.
In Azcona-Polanco, we observed that, “[i]n adopting Section 5D1.1(c), the Sentencing
Commission noted that ‘recent changes in our immigration law have made removal
nearly an automatic result for a broad class of noncitizen offenders.” 865 F.3d at 152
                                              4
we will affirm because Barry has failed to show that the error affected his substantial

rights.

          The transcript of the revocation hearing reflects that, when it came time to fashion

an appropriate sentence, the District Court was deeply concerned by Barry’s apparent

inability to follow the law and the concomitant danger he posed to the community. The

District Court thus enumerated Barry’s “five prior adult convictions ranging from fraud,

assault, retail theft and [unlawful] possession of access devices,” and emphasized the

need to “protect the public” from Barry’s “further crimes” because he had “no respect for

the law, absolutely none.” JA 40. Such concerns are properly considered by a district

court in the sentencing calculus, generally, and in deciding whether to impose a term of

supervised release, specifically. See 18 U.S.C. §§ 3553(a)(2)(C) and 3583(c).

          As we recognized in Azcona-Polanco, Section 5D1.1(c) advises against supervised

release for a deportable-immigrant defendant in the ordinary case because post-

incarceration supervision will be “unnecessary”; that is, the defendant will be removed

from the United States and, if he were to return without authorization, “the need to afford

adequate deterrence and protect the public ordinarily is served by a new prosecution.”

865 F.3d at 152 (quoting U.S.S.G. § 5D1.1(c), cmt. n.5). That said, the commentary also

provides that a district court should nonetheless consider imposing a term of supervised

release on a deportable immigrant if doing so will provide “an added measure of

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


(citation omitted). Indeed, the Government advises that proceedings to remove Barry
from the United States are underway.
                                                5
U.S.S.G. § 5D1.1(c), cmt. n.5. Either way, the district court has discretion whether to

follow Section 5D1.1(c). See United States v. Dominguez-Alvarado, 695 F.3d 324, 329

(5th Cir. 2012).

       Here the record reflects that, when the District Court sentenced Barry, he was not

in removal proceedings or otherwise in the custody of the Department of Homeland

Security (DHS). And no immigration detainer had been or was slated to be lodged such

that the District Court could and should have predicted that Barry would be supervised by

DHS immediately after serving his new term of incarceration. That is significant because

Barry at times could be evasive. According to the probation officer, for example,

multiple attempts to contact Barry after his arrest in Delaware County proved

unsuccessful because his “cellular phone is no longer active and his father and girlfriend

stated by telephone that they do not know his whereabouts.” JA 8; see also JA 40

(District Court: noting that Barry “disappeared . . . [and] did not appear at court

hearings” after his release from incarceration). Given those facts, along with the District

Court’s stated desire to protect the public from Barry’s recidivism and the Guideline

commentary discussed above, we discern no “reasonable probability” that the District

Court would have declined to impose a term of supervised release even had it engaged

with the substance of Section 5D1.1(c).

                                      *      *       *

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                              6
