     Case: 14-50364      Document: 00512991231         Page: 1    Date Filed: 04/02/2015




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

                                    No. 14-50364
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                           April 2, 2015
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

SENEN BALLESTEROS-VALVERDE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:13-CR-250-1


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Senen Ballesteros-Valverde (Ballesteros) was found guilty of being
unlawfully present in the United States subsequent to removal, in violation of
8 U.S.C. § 1326. The district court, without providing reasons, sentenced
Ballesteros to 70 months of imprisonment and a three-year term of
nonreporting supervised release. For the first time on appeal, Ballesteros
argues that the district court erred when it imposed a term of supervised


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50364   Document: 00512991231     Page: 2   Date Filed: 04/02/2015


                                   No. 14-50364

release against a deportable alien based on its reliance on an erroneous
presentence report and without providing an explanation for its decision to
deviate from U.S.S.G. § 5D1.1(c)’s recommendation that supervised release not
be imposed in such circumstances. Because Ballesteros did not object to the
term of supervised release, we review this argument for plain error. See United
States v. Dominquez-Alvarado, 695 F.3d 324, 327-28 (5th Cir. 2012). “Plain
error review requires four 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.” Id. at
328.
        The district court retains the discretion to impose supervised release in
cases involving a deportable alien where the facts and circumstances reflect
the need for a deterrence measure. Id. at 329. A district court need not
specifically refer to § 5D1.1(c) as long as it offers a “particularized explanation
and concern [that] would justify imposition of a term of supervised release.”
Id. at 330; United States v. Becerril-Pena, 714 F.3d 347, 350-51 (5th Cir. 2013).
        In the instant case, the district court gave no particularized explanation
regarding the necessity for a term of supervised release, nor did it explicitly
state that it had considered the statutory sentencing factors as applied to
Ballesteros’s case.     In addition, the presentence report did not reference
§ 5D1.1(c). Although the district court clearly erred by relying on the outdated
Guidelines and by not providing a particularized explanation, Ballesteros has
not shown that the error affected his substantial rights or, if left uncorrected,
would seriously affect the fairness, integrity, or public reputation of judicial
proceedings.     See Puckett v. United States, 556 U.S. 129, 135 (2009);




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                                No. 14-50364

Dominguez-Alvarado, 695 F.3d at 328; United States v. Cancino-Trinidad, 710
F.3d 601, 606-07 (5th Cir. 2013).
      AFFIRMED.




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