     Case: 14-10846      Document: 00513865362         Page: 1    Date Filed: 02/07/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                      No. 14-10846                                 FILED
                                                                             February 7, 2017

UNITED STATES OF AMERICA,                                                     Lyle W. Cayce
                                                                                   Clerk
              Plaintiff - Appellee

v.

DAVID HEREDIA-HOLGUIN,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:14-CR-39


Before REAVLEY, OWEN, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       David Heredia-Holguin’s case is before this panel pursuant to a remand
from the en banc court, which held that Heredia-Holguin’s deportation did not,
by itself, render his appeal of his term of supervised release moot. United
States v. Heredia-Holguin, 823 F.3d 337, 339 (5th Cir. 2016) (en banc). Based
on that determination, the en banc court remanded Heredia-Holguin’s case to
this panel to consider “any other issues remaining in Heredia-Holguin’s appeal


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                       No. 14-10846
of his term of supervised release.” Id. at 343. We ordered supplemental briefing
in light of the full court’s decision. In their supplemental briefs, the parties
have reiterated three remaining issues: 1 (1) whether the district court erred
when it imposed a term of supervised release; (2) whether the district court
erred when it treated Heredia-Holguin’s prior New Mexico conviction for
possession of methamphetamine as a “felony” conviction; and (3) whether the
district court erred when it ordered Heredia-Holguin to abstain from the use
of alcohol during the term of supervision. We affirm.
                                              I.
       In 2014, Heredia-Holguin pleaded guilty to illegal reentry and was
sentenced to twelve months of imprisonment followed by a three-year term of
supervised release. The district court attached two special conditions to the
supervised release term: (1) “[t]he defendant shall not illegally re-enter the
United States, if deported, removed, or allowed voluntary departure”; and (2)
“[t]he defendant shall abstain from the use of alcohol and all other intoxicants
during the term of supervision.” Heredia-Holguin was released from prison and
deported to Mexico in August of 2014. His three-year term of supervised
release has not expired.
       As the en banc court noted, Heredia-Holguin did not object in the district
court to his sentence or the conditions of his supervised release. See id. at 338.
Therefore, our review is only for plain error. “Plain error review requires four



       1 When he first filed his appeal, Heredia-Holguin initially conceded that the appeal
was moot based on his deportation and argued that his term of supervised release should be
equitably vacated. In response, the government moved to dismiss the appeal as moot. Before
ruling on the mootness and equitable vacatur issues, this court ordered the parties to submit
supplemental briefing to address, among other issues, “what error, if any, in appellant’s
conviction or sentence is complained of on appeal.” In his initial supplemental briefing,
Heredia-Holguin raised the same three merits issues that he raises now. The government
addressed the merits of those three issues in its response. We limit our review to those three
issues.
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                                      No. 14-10846
determinations: whether there was error at all; whether it was plain or
obvious; whether the error affected the defendant’s substantial rights; and
whether this court should exercise its discretion to correct the error in order to
prevent a manifest miscarriage of justice.” United States v. Dominguez-
Alvarado, 695 F.3d 324, 328 (5th Cir. 2012). “This court retains discretion to
correct [the] reversible plain error,” but “will do so ‘only if the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.’” Id.
at 328 (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)). 2
                                             II.
       Heredia-Holguin first contends that the district court erred when it
imposed a three-year term of supervised release to follow his twelve-month
term of imprisonment. Subsection (c) of § 5D1.1 of the Sentencing Guidelines
advises: “The 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.” U.S.S.G. § 5D1.1(c). We have interpreted this Guidelines
provision and its accompanying commentary to mean that, in the case of a
deportable alien, “supervised release should not be imposed absent a
determination that supervised release would provide an added measure of
deterrence and protection based on the facts and circumstances of a particular



       2 Although Heredia-Holguin concedes that the second and third issues he raises are
subject to plain error review only, he urges us to review the district court’s imposition of
supervised release for abuse of discretion. Heredia-Holguin argues that his response to the
Presentence Report, entitled “Adoption of Presentence Report and Comment Regarding
Imposition of Supervised Release,” constitutes an objection sufficient to preserve the issue.
The government counters that Heredia-Holguin merely “requested” that the district court
decline to impose supervised release when Heredia-Holguin adopted the Presentence Report.
The government therefore asks this court to apply plain error review. The en banc court
already addressed this issue, finding that Heredia-Holguin failed to object to any aspect of
his sentence. Heredia-Holguin, 823 F.3d at 339 (“Heredia–Holguin did not object to any part
of his sentence.”). Thus, our review of all three issues is for plain error only.
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                                 No. 14-10846
case.” Dominguez-Alvarado, 695 F.3d at 329; United States v. Alvarez-
Saldana, 537 F. App’x 463, 466 (5th Cir. 2013) (unpublished). Even when a
defendant objects under § 5D1.1(c), a district court’s “particularized
explanation and concern” justify imposing a supervised release term.
Dominguez-Alvarado, 695 F.3d at 330. This requirement “is not onerous.”
United States v. Becerril-Pena, 714 F.3d 347, 349 (5th Cir. 2013).
      “The word ‘ordinarily’ is hortatory, not mandatory,” in § 5D1.1(c).
Dominguez-Alvarado, 695 F.3d at 329. The provision is “couched in advisory
terms” and “does not evince an intent to confer a benefit upon deportable aliens
that is not available to other defendants.” Becerril-Pena, 714 F.3d at 350. We
have stated that the Sentencing Commission’s “official explanation of the
amendments suggest[s] that they were animated primarily by administrative
concerns,” and that these amendments “did not alter our highly deferential
review of within-Guidelines sentences.” Id. With this hortatory construction in
mind, we have been reluctant to second-guess a district court’s imposition of
supervised released contrary to § 5D1.1(c) even “when the district court
considers the guideline only implicitly.” Id. (citing United States v. Cancino-
Trinidad, 710 F.3d 601, 607 (5th Cir. 2013)).
      Here, the imposition of supervised release satisfies our requirements.
The district court imposed a within-Guidelines term of supervised release. In
doing so, the district court explicitly made the “determination that supervised
release would provide an added measure of deterrence and protection based on
the facts and circumstances of [this] particular case,” Dominguez-Alvarado,
695 F.3d at 329, explaining that supervised release would “offer an additional
potential sanction against the defendant should he subsequently be deported
and then try to unlawfully come back into this country.” This determination
goes beyond the “implicit consideration of the deterrent effect of [supervised
release]” which we approved in United States v. Cancino-Trinidad, 710 F.3d
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601, 607 (5th Cir. 2013). The district court made this finding after adopting the
Presentence Report (PSR) in full, which informed the court of § 5D1.1(c)’s
recommendation against supervised release.
      The PSR additionally detailed Heredia-Holguin’s long history in the
United States, his drug-related criminal history, and the fact that he had been
previously deported, but nonetheless returned to the United States soon after
and admitted to engaging in additional drug-related criminal conduct upon his
return. Heredia-Holguin did not object to any of these findings. “As § 5D1.1’s
commentary      makes     clear, . . . supervised   release   remains     especially
appropriate for defendants with lengthy criminal histories.” Becerril-Pena, 714
F.3d at 351. We therefore find unavailing Heredia-Holguin’s argument that
“[n]othing in the record” supports a finding that he required additional
deterrence.
      We conclude that, under plain error review, the district court’s finding
that additional deterrence was appropriate in this case did not constitute
reversible error.
                                        III.
      Next, Heredia-Holguin argues that the district court erred by treating
his prior New Mexico conviction for possession of methamphetamine as a
“felony conviction” for the purpose of applying 8 U.S.C. § 1326(b)(1), which
provides enhanced statutory maximum terms of imprisonment and supervised
release for individuals who illegally reenter the United States after having
been deported following a felony conviction. Heredia-Holguin concedes that he
did not object to the district court’s characterization of his prior conviction and
therefore that our review is for plain error.
      Ordinarily, an individual who has been deported and subsequently
illegally reenters is guilty of a Class E Felony and is subject to a maximum
term of imprisonment of two years and a maximum term of supervised release
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                                 No. 14-10846
of one year. 8 U.S.C. § 1326(a); 18 U.S.C. § 3583(b)(3). However, if the
individual’s “removal was subsequent to a conviction for commission of . . . a
felony,” the offense is enhanced to a Class C Felony, and the statutory
maximum punishment becomes ten years of imprisonment and three years of
supervised release. 8 U.S.C. § 1326(b)(1); 18 U.S.C. § 3583(b)(2). Although the
district court sentenced Heredia-Holguin to twelve months of imprisonment—
below the statutory maximum for the “unenhanced” version of illegal reentry—
the court imposed three years of supervised release based on Heredia-
Holguin’s New Mexico conviction for possession of methamphetamine. The
PSR reflected that, in 2004, Heredia-Holguin pleaded guilty to the offense and
was sentenced to 18 months deferred adjudication probation by a New Mexico
court. In 2006, after his initial deportation, Heredia-Holguin’s probation was
successfully discharged. Heredia-Holguin makes two arguments for why the
district court’s application of the felony enhancement was in error.
      First, Heredia-Holguin contends that, unlike “standard practice,” there
was no documentation attached to his PSR proving that his New Mexico
offense was in fact a felony—as opposed to a misdemeanor—and he therefore
contends that the district court erred by relying solely on the PSR’s
characterization of the offense when it applied the felony enhancement. Even
if we assume, arguendo, this supposition to be true, Heredia-Holguin does not
explain how this alleged error constitutes “a manifest miscarriage of justice.”
Dominguez-Alvarado, 695 F.3d at 328. And we perceive no miscarriage of
justice, because Heredia-Holguin does not actually contest that New Mexico
possession of methamphetamine qualifies as a felony, nor does he challenge
the accuracy of any of the information contained in the PSR with respect to
that conviction.
      Second, Heredia-Holguin argues that although he “pleaded guilty” in
New Mexico court to possession of methamphetamine, “[a]s best one can tell
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                                       No. 14-10846
from the PSR alone, it appears that the New Mexico state court deferred
imposition of sentence” and “[u]nder New Mexico law, satisfying a deferred
sentence has functioned as the judicial equivalent of a pardon.” Based on New
Mexico’s treatment of deferred sentences like his, Heredia-Holguin urges this
court to find that his New Mexico disposition could not be characterized as a
“conviction” at the time of his sentencing for the purpose of the felony-
conviction enhancement.
       Heredia-Holguin acknowledges this court’s authority that is contrary to
his position. 3 Nonetheless, Heredia-Holguin raises the issue to preserve it for
further appellate review. Heredia-Holguin’s own acknowledgement of
authority contrary to his position demonstrates that the district court’s
treatment of his New Mexico deferred adjudication as a “conviction” was not
“clear or obvious” error. Moreover, even if we were to find such error, Heredia-
Holguin again fails to brief the remaining prong of plain error review.
Accordingly, we conclude that the district court did not commit reversible error
by treating Heredia-Holguin’s New Mexico deferred adjudication as a felony
conviction.
                                              IV.
       Finally, Heredia-Holguin argues that the district court erred when it
ordered him to refrain from consuming alcohol as a special condition of his



       3   Indeed, the PSR reflects—and Heredia-Holguin does not dispute—that he pleaded
guilty to possession of methamphetamine and that the New Mexico Court imposed a term of
deferred adjudication probation. As Heredia-Holguin acknowledges, the Immigration and
Nationality Act defines “conviction” as including either “a formal adjudication of guilt” or “if
an adjudication of guilt has been withheld, where . . . the alien has entered a plea of guilty
. . . and the judge has ordered some form of punishment, penalty, or restraint on the alien’s
liberty to be imposed.” 8 U.S.C. § 1101(a)(48)(A). We have previously held that deferred
adjudications such as Heredia-Holguin’s satisfy this definition of “conviction.” See, e.g.,
United States v. Mondragon-Santiago, 564 F.3d 357, 368 (5th Cir. 2009) (observing that
“[f]ederal law counts Texas’s deferred adjudication probation as a conviction” under
§ 1101(a)(48)(A)).
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                                       No. 14-10846
supervised release. 4 Again, Heredia-Holguin concedes that our review is for
plain error, because he did not object to the imposition of this condition in the
district court. See United States v. Weatherton, 567 F.3d 149, 152 (5th Cir.
2009).
      “A district court has wide discretion in imposing terms and conditions of
supervised release.” United States v. Paul, 274 F.3d 155, 164 (5th Cir. 2001).
“[T]hough extensive,” the district court’s discretion “is subject to statutory
requirements.” United States v. Ellis, 720 F.3d 220, 225 (5th Cir. 2013). A
condition of supervised release must be related to at least one of four factors:
“(1) the nature and characteristics of the offense and the history and
characteristics of the defendant, (2) the deterrence of criminal conduct, (3) the
protection of the public from further crimes of the defendant, and (4) the
provision of needed educational or vocational training, medical care, or other
correctional treatment to the defendant.” Weatherton, 567 F.3d at 153 (citing
18 U.S.C. §§ 3583(d)(1), 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D)). Further, a
condition of supervised release “cannot impose any greater deprivation of
liberty than is reasonably necessary to advance deterrence, protect the public
from the defendant, and advance the defendant’s correctional needs.” Id.
(internal quotation marks omitted). We have held that even when a condition
does not relate to the crime of conviction, “[t]he district court has the discretion
to impose conditions reasonably related to the history and characteristics of
the defendant or his general rehabilitation.” United States v. Cothran, 302 F.3d
279, 290 (5th Cir. 2002) (internal quotation marks omitted); see also United
States v. Salazar, 743 F.3d 445, 452 (5th Cir. 2014).
         Heredia-Holguin challenges the no-alcohol condition on the ground that
“[t]he record provides no reliable indication that [he] had ever abused alcohol.”


      4   Heredia-Holguin does not challenge the prohibition against “all other intoxicants.”
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                                  No. 14-10846
As Heredia-Holguin notes, the PSR explicitly stated that he “has no history of
alcohol . . . use.” However, the PSR also stated that Heredia-Holguin’s prior
conviction for possession of methamphetamine and his admission to
authorities in 2013 that he had hidden methamphetamine in his home “may
indicate more involvement with illegal controlled substances than he is
acknowledging.” Additionally, the PSR reflected charges for conspiracy to
distribute and possess with intent to distribute methamphetamine. Heredia-
Holguin did not dispute the accuracy or reliability of the information contained
in the PSR, which the district court adopted as its findings.
      We acknowledge that the connection between the alcohol restriction and
Heredia-Holguin’s history as described by the PSR is thin considering the
absence of evidence indicating a history of alcohol abuse specifically. However,
under plain error review, we have previously upheld special conditions of
supervised release that required the defendant to abstain from alcohol and
other intoxicants when, although there was no evidence of alcohol abuse
specifically, “the [district] court had reason to believe that [the defendant]
abuses controlled substances . . . .” United States v. Gayford, 380 F. App’x 442,
444 (5th Cir. 2010) (unpublished); see also id. (“Because the court had reason
to believe that he abuses controlled substances, it could require participation
in a drug-abuse treatment program, and restrict Gayford’s access to other
substances, including alcohol and legal drugs presenting a danger of
addiction.”). Such evidence, we have determined, is a sufficient basis to uphold
a district court’s restriction of a defendant’s “access to other substances,
including alcohol” under the deferential plain error standard. Id.; see also
United States v. Cortez-Guzman, 606 F. App’x 241, 243 (5th Cir. 2015)
(unpublished), cert. denied, 136 S. Ct. 351 (2015) (“Cortez has a record of illegal
substance abuse, as shown by his conviction for possession of cocaine. Thus,
the district court did not err by ordering him to abstain from using alcohol
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                                       No. 14-10846
during his term of supervised release.”); United States v. McCall, 419 F. App’x
454, 458 (5th Cir. 2011) (unpublished) (holding that, when a defendant
admitted to abusing marijuana, “the district court had reason to believe [that
the defendant] currently abused a controlled substance” and therefore did not
commit “clear or obvious error by prohibiting [him] from consuming alcohol, a
substance that also presents a danger of addiction”). Cf. United States v. Flores-
Guzman, 121 F. App’x 557, 558 (5th Cir. 2005) (unpublished) (finding that a
restriction prohibiting the defendant from “drinking or using any addictive
substances” constituted plain error because the restriction was “not reasonably
related to the nature of the offense or [the defendant’s] characteristics”).
       We note that even if we were to accept Heredia-Holguin’s argument that
the district court erred and that the error was clear or obvious, he has not
attempted to demonstrate that the error affects his substantial rights. See
Cancino-Trinidad, 710 F.3d at 606 (“On plain-error review, the appellant has
the burden of showing an error affected substantial rights.”). 5 Nor has Heredia-
Holguin suggested “that the ‘degree of the [alleged] error and the particular
facts of [his] case’ warrant the exercise of our discretion.” United States v.
Silvas, 637 F. App’x 175, 176 (5th Cir. 2016) (unpublished) (first alteration in
original) (quoting United States v. Prieto, 801 F.3d 547, 550–53 (5th Cir. 2015)).
Based on the record and briefing before us, we cannot conclude that the district



       5  As the government notes, Heredia-Holguin—who was deported from the United
States in 2014—does not suggest that he is currently abiding by the condition that he abstain
from alcohol use. Cf. United States v. Mason, 626 F.App’x 473, 475 (5th Cir. 2015) (noting
that “[e]ven if” a supervised release condition prohibiting alcohol use were plain error, “given
that [the defendant] will be more than 80 years old when he is released . . . it is hard to say
at this point that [the supervised release term] affects his substantial rights or supports
exercise of our discretion to correct any error”) (internal quotation marks omitted).
Nonetheless, we do not address whether a supervised release condition such as this one
affects the substantial rights of an individual who has been deported. We only hold that, on
the briefing before us, Heredia-Holguin has failed to carry his burden with respect to this
element of plain error review.
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court’s imposition of the no-alcohol condition—in light of Heredia-Holguin’s
history involving controlled substances generally and his failure to allege any
effect of the condition on his substantial rights—“so seriously threatens the
fairness, integrity, or public reputation of the court system that we must
correct it.” Prieto, 801 F.3d at 554.
         Accordingly, we do not disturb the challenged supervised release
condition.
                                        V.
         For the foregoing reasons, we AFFIRM the sentence of the district
court.




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