                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4784


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOSE ADOLFO BENITEZ ALVARADO,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, Senior District
Judge. (1:13-cr-00696-JFM-1)


Submitted:   July 23, 2015                 Decided:   August 27, 2015


Before THACKER and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Vacated in part and remanded by unpublished per curiam opinion.


James Wyda, Federal Public Defender, Meghan Skelton, Greenbelt,
Maryland, for Appellant.     Rod J. Rosenstein, United States
Attorney, Zachary A. Myers, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Jose    Adolfo    Benitez      Alvarado      pleaded     guilty   to    illegal

reentry of a removed alien, in violation of 8 U.S.C. § 1326(a),

(b)(2) (2012).        On appeal, Benitez Alvarado contends that the

district court procedurally erred when it sentenced him to a

three-year     term    of       supervised       release    without     a     proper

explanation.       We agree, vacate the term of supervised release,

and remand for further proceedings.

     Benitez Alvarado is a native and citizen of El Salvador.

In   2002,    following     a    2001    conviction     for    robbery,      Benitez

Alvarado     was   ordered       removed       from   the   United     States    and

subsequently deported.           He was removed from the United States a

second time, in 2011.           In 2013, Benitez Alvarado was arrested in

Maryland and later convicted of reckless endangerment.                      The 2002

order of removal was never rescinded, and Benitez Alvarado was

never given permission to reenter the United States.

     Before Benitez Alvarado pleaded guilty to illegal reentry,

he was informed that he could receive a sentence that included a

period of supervised release.                  The presentence report (“PSR”)

recommended a Sentencing Guidelines range of 46 to 57 months’

imprisonment.      The PSR did not make a recommendation regarding

supervised     release,      but    it     did    reference     U.S.    Sentencing

Guidelines Manual § 5D1.1 (regarding imposition of a term of

supervised release).

                                           2
       Under             USSG     § 5D1.1(c),      if        supervised        release          is   not

required by statute and the defendant is an alien facing post-

incarceration removal, a sentencing court “ordinarily should not

impose          a     term        of    supervised      release.”              U.S.        Sentencing

Guidelines               Manual    § 5D1.1(c).          If    the    alien      were       to    return

illegally, deterrence and the need to protect the public are

“adequately served by a new prosecution.”                                    § 5D1.1 cmt. n.5.

“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.”                                          Id.

       At       sentencing,             the     Government        requested        a       Guidelines

sentence            of    52    months’       imprisonment        and    3    years’       supervised

release.            As the Government began to acknowledge that supervised

release under this circumstance was not generally advised, the

district court interjected: “I do that anyway.                                   It seems to me

it’s       an       additional         incentive   not       to   come       back.”        J.A.      44.1

Benitez Alvarado claimed his criminal history was overstated and

requested a departure from his Criminal History Category, and a

Guidelines range of 27 to 33 months.                                He did not specifically

object to the imposition of supervised release.                                    Nevertheless,



       1
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.



                                                    3
he claimed that he had only returned to the United States in the

past to be with his family, and that because his family has

decided to move to El Salvador he would not be returning to the

United States.

       The    district        court    partially            credited   Benitez      Alvarado’s

argument for a lower sentence and reduced his Guidelines range

to 41 to 51 months’ imprisonment.                             The court then sentenced

Benitez      Alvarado     to      41     months’        imprisonment          and    3    years’

supervised      release.         Benitez          Alvarado      did    not    object     to   the

imposition of supervised release.

       The parties do not agree on the appropriate standard of

review, Benitez          Alvarado       asserting            that    reasonableness       review

applies and the Government arguing for plain error review.                                     In

United States v. Aplicano-Oyuela, __ F.3d __, 2015 WL 4081258

(4th Cir. July 7, 2015), the Defendant was convicted of illegal

reentry      and      faced     deportation           upon     the     completion        of   his

sentence.          At   sentencing,          he    knew       that    the    PSR    included    a

recommendation that he serve a period of supervised release, and

yet,    while      he   argued        for    a     below-Guidelines           sentence,       the

Defendant       did     not     object       to       the     imposition      of    supervised

release.      The district court sentenced the Defendant to a term

of imprisonment and a period of supervised release.                                 On appeal,

the Defendant claimed that the imposition of supervised release

was    both     procedurally           and    substantively            unreasonable.           We

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concluded      that       the     Defendant    did         not   properly     preserve    this

particular sentencing issue and reviewed the issue for plain

error.     2015 WL 4081258, at *4.                     In view of the similarity of

these facts to the circumstances presented here, we will review

Benitez Alvarado’s claim for plain error.

      To      satisfy         plain    error      review,        Benitez      Alvarado    must

establish that: (1) there is a sentencing error; (2) the error

is plain; and (3) the error affects his substantial rights.                               See

United States v. Olano, 507 U.S. 725, 731–32 (1993).                                 If this

test is satisfied, we must decide whether to cure the error “and

should     not      do       so   unless    the       error      ‘seriously     affects   the

fairness,        integrity            or    public          reputation        of    judicial

proceedings.’”               United States v. Hargrove, 625 F.3d 170, 184

(4th Cir. 2010) (quoting Olano, 507 U.S. at 736).                               An error is

plain    if    it    is      “clear    or   obvious         at   the   time    of   appellate

consideration.”               United   States         v.   Ramirez-Castillo,        748   F.3d

205, 215 (4th Cir. 2014) (citation and internal quotation marks

omitted).

      In Aplicano-Oyuela, we held that our review for procedural

reasonableness of the imposition of supervised release in an

illegal reentry case should include consideration of whether the

sentencing court “(1) is aware of Guidelines section 5D1.1(c);

(2)   considers          a     defendant’s     specific          circumstances      and   the

§ 3553(a) factors; and (3) determines that additional deterrence

                                                  5
is needed.”        2015 WL 4081258, at *6 (citing United States v.

Alvarado, 720 F.3d 153, 159 (2d Cir. 2013)).                  The record shows

that here the court was aware of USSG § 5D1.1(c).                  But, when the

Government    first      mentioned     supervised    release,      the   district

court stated, “I do that anyway.”            J.A. 44.       The court did not

explain why the facts and circumstances of Benitez Alvarado’s

case warranted the “added measure of deterrence and protection”

that    a   term    of   supervised      release    would     provide.      U.S.

Sentencing    Guidelines      Manual    § 5D1.1     cmt.    n.5.     Rather,   in

reference to Benitez Alvarado’s claim that he would not return

to the United States, the court stated, “I do understand that

you and your family are trying to make arrangements for them to

go to your home country rather than have you come here, and, in

terms of that, I think there is a realistic chance that’s what

will happen.”      J.A. 54.

       Because the district court implied that it always ordered

supervised release on deportable aliens, while at the same time

perceiving a realistic chance that Benitez Alvarado would not

return to the United States, we conclude that the court failed

to consider Benitez Alvarado’s specific circumstances before it

decided to impose supervised release.              We also conclude that the

court did not decide whether additional deterrence was needed

“based on the facts and circumstances of [the] particular case.”



                                         6
U.S.       Sentencing   Guidelines         Manual    § 5D1.1          cmt.    n.5.

Accordingly, we conclude there was error and it was plain. 2

       Furthermore, we conclude that this error affected Benitez

Alvarado’s substantial rights.          See United States v. Price, 777

F.3d 700, 712 (4th Cir. 2015) (holding Guidelines error affected

defendant’s     substantial   rights       because   he   was    sentenced      to

longer term of supervised release).            Finally, given the court’s

finding of a realistic chance Benitez Alvarado would not return

and that his criminal history was overstated, the record does

not    overwhelmingly   support   the      finding   that,      had    the   court

considered Benitez Alvarado’s individual circumstances, it would

have ordered supervised release.            Cf. United States v. Promise,

255 F.3d 150, 161-64 (4th Cir. 2001) (en banc) (declining to

notice plain error at sentencing because evidence overwhelmingly

supported drug quantity).      Therefore, we conclude that the error

seriously affects the fairness, integrity, and public reputation

of the judicial proceedings and should be corrected.                   See Price,

777 F.3d at 712.

       2
       The district court, of course, did not have the benefit of
our decision in Aplicano-Oyuela at the time of sentencing.
Nevertheless, the Supreme Court has explained that an error may
be plain even if the legal question was unsettled at the time of
the district court’s decision: “It is enough that an error be
‘plain’ at the time of appellate consideration for the second
part of the four-part Olano test to be satisfied.” Henderson v.
United States, 133 S. Ct. 1121, 1130-31 (2013) (alterations
omitted).



                                       7
     Accordingly, we vacate the term of supervised release and

remand for resentencing in accordance with this opinion. 3                We

dispense   with     oral   argument   because     the    facts   and   legal

contentions   are   adequately   presented   in    the   materials     before

this court and argument would not aid the decisional process.



                                          VACATED IN PART AND REMANDED




     3 We express no opinion as to the propriety of supervised
release in this case.



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