     Case: 11-11171   Document: 00512228456     Page: 1   Date Filed: 05/02/2013




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

                                                                  FILED
                                                                 May 2, 2013

                                 No. 11-11171                   Lyle W. Cayce
                                                                     Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff–Appellee
v.

ERNESTO BECERRIL-PEÑA, also known as Ernesto Becerril Peña

                                           Defendant–Appellant



                 Appeal from the United States District Court
                      for the Northern District of Texas


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
      Defendant-Appellant Ernesto Becerril-Peña (“Becerril”) pled guilty to
illegally reentering the United States after a prior deportation. The district
court sentenced him to 78 months in prison and to a two-year term of supervised
release. Becerril now challenges his sentence, contending that the district court
erred in imposing supervised release and in failing to explicitly address his
arguments in favor of a downward variance. We AFFIRM.
      At sentencing, Becerril objected to the imposition of supervised release
based on recent amendments to § 5D1.1 of the Sentencing Guidelines. See
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U.S.S.G. § 5D1.1(c) & cmt. n.5 (2011).1 In Becerril’s view, the amendments
prohibit a district court from adding a term of supervised release to a removable-
alien defendant’s sentence unless it specifically finds that the case is
“extraordinary.”       Although Becerril acknowledged his extensive criminal
history,2 he also requested a downward variance based on a number of factors,
including cultural assimilation.
       After listening to defense counsel’s arguments, the district court adopted
the PSR’s findings and conclusions and denied Becerril’s § 5D1.1 objection.3 It
concluded that it could impose supervised release without making special
findings that Becerrils’ situation was “extraordinary” and that Becerril’s
situation “adequately and appropriately address[ed] the factors the [c]ourt
should consider under [18 U.S.C. §] 3553(a).” After imposing various conditions
of supervised release, the district court also found that Becerril’s sentence
“adequately and appropriately addresse[d] all of the factors [it] should consider
in sentencing.” At the close of the sentencing hearing, Becerril objected to the
district court’s “failure to adequately address” his request for a downward
variance. Becerril reurges this objection on appeal, as well as his § 5D1.1


       1
         Section 5D1.1(c) states 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.” Commentary note 5
provides that a 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.”
       2
         Despite being only 20 years old at the time of sentencing, Becerril qualified for
criminal history category V.
       3
        The PSR concluded that Becerril’s cultural-assimilation argument lacked merit and
calculated his total offense level at 21, which included a 16-level crime-of-violence
enhancement and a 3-level reduction for acceptance of responsibility. The PSR did not fully
account for all of the amendments to § 5D1.1, but that does not change our analysis. The
record shows that the parties and the district court considered the guideline as amended at
sentencing. See United States v. Lara-Espinoza, 488 F. App’x 833, 835 (5th Cir. 2012)
(unpublished).

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argument, both of which we review de novo to the extent raised below.4 See
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
       Addressing Becerril’s supervised-release objection first, we conclude that
the district court properly imposed a term of supervised release “based on the
facts and circumstances of [this] particular case.” U.S.S.G. § 5D1.1 cmt. n.5. We
recently emphasized that the amendments to § 5D1.1 preserved district courts’
authority to impose terms of supervised release as they deem necessary to
provide “an added measure of deterrence and protection.” United States v.
Dominguez-Alvarado, 695 F.3d 324, 329 (5th Cir. 2012) (using the terms
“discretion,” “option,” and “elect” to describe district courts’ responsibilities
under § 5D1.1(c)). Dominguez-Alvarado explained that § 5D1.1 obligates district
courts to give some “particularized explanation” and “adhere to the Rule 32
process” in imposing supervised release. Id. at 330. As in other sentencing
contexts where a guidelines sentence is given, the requirement is not onerous.
Rita v. United States, 551 U.S. 338, 356 (2007). (“The law leaves much, in this
respect to the judge’s own professional judgment.”). In Dominguez-Alvarado, for
instance, we noted that the district court satisfied its duties—whether reviewed
de novo or for plain error—with a single sentence finding supervised release
appropriate under “the factors in [§] 3553(a), to deter future criminal conduct,
[and in light of the defendant’s] particular background and characteristics.” 695
F.3d at 330.
       That pragmatic approach makes sense given that—against a backdrop of
Guidelines that are themselves already advisory—§ 5D1.1(c) is couched in


       4
         To the extent Becerril makes a more expansive § 5D1.1 objection on appeal, we would
normally review for plain error. See, e.g., United States v. Green, 324 F.3d 375, 381 (5th Cir.
2003) (plain error applies if the objection before the district court differs from that on appeal).
Because we conclude that Becerril’s arguments fail under even the less deferential standard
of review, we need not parse which arguments were actually raised in the district court and
which were not.

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advisory terms. District courts generally “shall order” supervised release when
required by statute or for any defendant sentenced to more than a year in prison.
See U.S.S.G. § 5D1.1(a). Section 5D1.1(c), of course, does not alter the “required
by statute” exhortation. Instead, it addresses the issue of whether supervised
release makes sense for a defendant for whom it is not required by statute and
as to whom deportation is a virtual certainty. This section does not evince an
intent to confer a benefit upon deportable aliens that is not available to other
defendants.      Certainly nothing indicates that the Sentencing Commission
intended to give preferential treatment to such defendants in adopting the
amendments at issue here. Instead, the Commission’s official explanation of the
amendments suggest that they were animated primarily by administrative
concerns inherent in trying to administer supervised release as to someone who
has been deported.5 See U.S.S.G. app. C, vol. III, amend. 756 at 410 (2011).
       Additionally, since construing § 5D1.1(c) as “hortatory” in Dominguez-
Alvarado, 695 F.3d at 329, we have been skeptical of requests to second-guess
district courts’ decisions to impose terms of supervised release in cases where the
amendments could apply,6 even where the court committed plain error by ruling
contrary to § 5D1.1(c) or when the district court considers the guideline only
implicitly. See United States v. Chavez-Trejo, No. 12-40006, Slip Op. at 6-7 (5th
Cir. Apr. 3, 2013) (unpublished) (affirming supervised release on discretionary


       5
         The provisions here thus differ from “defendant-focused” Guideline amendments such
as those targeting the crack-cocaine sentencing disparity. See U.S.S.G. app. C, vol. III, amend.
750 (2011).
       6
         See, e.g., United States v. Morin, No. 12-40260, 2013 WL 586788, at *2 (5th Cir. Feb.
6, 2013) (unpublished) (affirming within-Guidelines term of supervised release on plain-error
review because district court noted the defendant’s criminal and immigration history); United
States v. Garcia-Lemus, No. 12-40353, 2013 WL 323080, at *1 (5th Cir. Jan. 28, 2013)
(unpublished) (same, where district court also gave no specific reasons for imposing supervised
release); Lara-Espinoza, 488 F. App’x at 835 (same, because “[e]ven though the district court
adopted [the PSR’s use of] an outdated Guidelines provision in imposing a term of supervised
release, [the defendant’s] sentence was imposed in accordance with the amended Guidelines”).

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prong of plain-error review); United States v. Cancino-Trinidad, No. 11-41344,
— F.3d —, 2013 WL 869047, at *3 (5th Cir. Mar. 8, 2013) (affirming supervised
release where record showed that district court gave “implicit consideration” to
§ 5D1.1(c)). The amendments, after all, did not alter our highly deferential
review of within-Guidelines sentences, which requires us to apply a baseline
“infer[ence] that the [district] judge has considered all the factors for a fair
sentence set forth in the Guidelines.” United States v. Mares, 402 F.3d 511, 519
(5th Cir. 2005); see also United States v. Bonilla, 524 F.3d 647, 658-59 (5th Cir.
2008)(reasoning that a lack of specific findings does not require remand where
the record on appeal “makes clear both the reasons for the sentence and their
adequacy as a matter of law).7 Notably, § 3553(a) requires district courts to
“consider,” among other things, whether the imposed sentence addresses the
defendant’s “history and characteristics,” “afford[s] adequate deterrence,” and
“protect[s] the public from further crimes of the defendant.”                     18 U.S.C. §
3553(a)(1), (a)(2)(B), (a)(2)(C). In sum, a district court should discharge its
duties under § 5D1.1(c) by considering the applicable § 3553(a) factors of
deterrence and protection, following the processes of Rule 32, and imposing
reasoned and individualized sentences under the circumstances presented with
appropriate explanation given.
       Considering the sentencing hearing in this case, the district court
supplied a sufficiently “particularized explanation” of its decision to impose
supervised release. As in Dominguez-Alvarado, the court found Becerril’s
sentence appropriate under the factors listed in 18 U.S.C. § 3553(a) and those
applicable to sentencing generally.



       7
         In Bonilla, which involved reviewing the sentence as a non-Guidelines sentence, we
looked to the entirety of the sentencing record in light of the district court’s reference to “the
arguments made earlier.” Id. at 657-58. The record here leaves no doubt that the district court
correctly understood and specifically considered Becerril’s § 5D1.1 arguments.

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      As § 5D1.1’s commentary makes clear, moreover, supervised release
remains especially appropriate for defendants with lengthy criminal histories.
See U.S.S.G. § 5D1.1 cmt. n.3(C) (“In general, the more serious the defendant’s
criminal history, the greater the need for supervised release.”). Becerril’s
sentencing hearing focused on his extensive record, which includes offenses
committed even after his prior removal from the United States. Indeed, the only
statement Becerril made to the district court in allocution was to apologize for
committing so many crimes. That Becerril’s “rap sheet” belies his youth removes
this case from the mine-run of illegal-reentry cases lacking “unusual or
uncommon facts or circumstances” that are more properly within the ambit of
amended § 5D1.1. Dominguez-Alvarado, 695 F.3d at 330; see also Cancino-
Trinidad, 2013 WL 869047, at *3 (reasoning that the defendant’s substantial
criminal record justified supervised release regardless of whether the district
court explicitly analyzed § 5D1.1(c)).           Accordingly, the district court
appropriately determined that this particular defendant’s sentence should
include a term of supervised release.
      Becerril’s downward-variance objection similarly lacks merit. “[W]hen a
judge decides simply to apply the Guidelines to a particular case, doing so will
not necessarily require lengthy explanation.” Rita, 551 U.S. at 356. A district
court need not provide specific reasons for rejecting a defendant’s arguments or
request for a lower sentence, so long as it gives an explanation sufficient “to
satisfy the appellate court that [it] has considered the parties’ arguments and
has a reasoned basis for exercising [its] own legal decisionmaking authority.”
Id. at 356; see also id. at 357-59.
      Here, the district court found at the sentencing hearing that Becerril’s
sentence “adequately and appropriately addresse[d] all of the factors the [c]ourt
should consider in sentencing,” including under § 3553(a). The district court also
explained in its Statement of Reasons that the sentence “appropriately

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considere[d] the advisory guideline range and all factors mentioned in . . .
§ 3553(a).” The district court accorded counsel and the defendant an opportunity
to speak. Our review of the record as a whole confirms that the district court
considered Becerril’s mitigation arguments, weighed the § 3553(a) factors, and
provided a reasoned basis for its decision. Accordingly, Becerril has not shown
that the district court committed significant procedural error in declining to
explicitly address his arguments for a shorter sentence. See Gall v. United
States, 552 U.S. 38, 51 (2007) (observing that an appellate court should give “due
deference” to a district court’s finding that the § 3553(a) factors justify a
particular sentence); Rita, 551 U.S. at 359 (“We acknowledge that the judge
might have said more. . . .     But context and the record make clear that
[sufficient] reasoning underlies the judge’s conclusion.”); United States v.
Sanchez, 667 F.3d 555, 568 (5th Cir. 2012) (concluding that the district court’s
“sparse” explanation, which did not reference § 3553(a), was nonetheless
adequate because the record showed that the court “had before it at the
sentencing hearing the PSR and [the defendant’s] objections to the PSR, as well
as [the defendant’s] sentencing memorandum,” and then heard the defendant’s
arguments before imposing a middle-of-the-Guidelines sentence).
      AFFIRMED.




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