     Case: 12-40103       Document: 00512103723         Page: 1     Date Filed: 01/07/2013




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

                                                                            FILED
                                                                          January 7, 2013
                                     No. 12-40103
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

OMAR ARELLANO-GONZALEZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:11-CR-1184-1


Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Omar Arellano-Gonzalez appeals the sentence imposed pursuant to his
guilty-plea conviction for illegal reentry into the United States after deportation.
He contends: the sentence was substantively unreasonable because the district
court imposed a three-year term of supervised release without explanation,
notwithstanding that advisory sentencing Guideline § 5D1.1(c) states supervised
release should ordinarily not be imposed on a deportable alien; and the sentence
was procedurally unreasonable because the court provided no explanation for

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-40103      Document: 00512103723      Page: 2   Date Filed: 01/07/2013

                                   No. 12-40103

imposing supervised release, and did not provide notice of its intent to depart
from the advisory Guidelines sentencing range.
         Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly-preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines is
reviewed de novo; its factual findings, only for clear error. E.g., United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas,
404 F.3d 355, 359 (5th Cir. 2005). As Arellano concedes, he failed to raise his
procedural-error contention in district court; therefore, review is only for plain
error. United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007). To show
reversible plain error, Arellano must show, inter alia, forfeited error that was
clear or obvious. Puckett v. United States, 556 U.S. 129, 135 (2009). He fails to
do so.
         The term of supervised release imposed on Arellano was within the
statutory and advisory Guidelines sentencing range for his offense of conviction;
therefore, despite the language of Guideline § 5D1.1(c), it does not trigger a
“departure analysis”. See United States v. Dominguez-Alvarado, 695 F.3d 324,
329 (5th Cir. 2012). Therefore, the court was not required to give notice of its
possibly imposing supervised release. See id.
         Further, the district court was aware of the provisions of Guideline
§ 5D1.1(c) because they were set out in the presentence investigation report,
which the court adopted. Given the court’s considering at sentencing both
Arellano’s request for a lenient sentence and his violent criminal history and
alcohol-abuse problems, Arellano fails to show the district court procedurally
erred in declining to explain its imposing supervised release. See id. at 329-30.
Indeed, Guideline § 5D1.1, comment 3(C), states “it is highly recommended that

                                         2
    Case: 12-40103     Document: 00512103723       Page: 3   Date Filed: 01/07/2013

                                    No. 12-40103

a term of supervised release [] be imposed” where, as here, defendant has a
history of drug or alcohol abuse.
      Arguably, Arellano’s contention that the imposition of supervised release
is substantively unreasonable was not properly preserved and, therefore, subject
to plain-error review. In any event, under the more lenient abuse-of-discretion
standard, the contention fails. Because the supervised release was within the
advisory Guidelines sentencing range, our court applies a presumption of
reasonableness and infers the district court considered all pertinent sentencing
considerations in imposing the sentence. United States v. Mares, 402 F.3d 511,
519 (5th Cir. 2005) (“When the judge exercises [his] discretion to impose a
sentence within the [advisory] Guidelines [sentencing] range and states for the
record that [he] is doing so, little explanation is required.”).
      AFFIRMED.




                                         3
