     Case: 12-40041       Document: 00512092368         Page: 1     Date Filed: 12/21/2012




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

                                                                            FILED
                                                                        December 21, 2012
                                     No. 12-40041
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JORGE ALBERTO MARTINEZ-BERRIOS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:10-CR-896-1


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
       Jorge Alberto Martinez-Berrios (Martinez) appeals the sentence of six
months of imprisonment and 30 months of supervised release imposed by the
district court following the revocation of his term of supervised release. Citing
§ 5D1.1(c) of the Sentencing Guidelines, which provides that supervised release
“ordinarily” should not be imposed “in a case in which supervised release is not
required by statute and the defendant is a deportable alien who likely will be



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40041

deported after imprisonment,” Martinez argues that his sentence was
procedurally and substantively unreasonable.
      Although this court ordinarily reviews revocation sentences under the
“plainly unreasonable” standard, United States v. Miller, 634 F.3d 841, 843 (5th
Cir.), cert. denied, 132 S. Ct. 496 (2011), our review in this case is for plain error
because Martinez failed to object to his sentence in the district court. See United
States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). To show plain error,
Martinez must show a forfeited error that is clear or obvious and that affects his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he
makes such a showing, we have the discretion to correct the error but only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.
      Considering the record before us, there is no indication that the district
court accounted for or considered § 5D1.1(c) in applying the guidelines for
supervised release. The district court thus committed clear or obvious error. See
United States v. Blocker, 612 F.3d 413, 416 (5th Cir. 2010). However, Martinez
cannot show that the error affected his substantial rights.
      The guidance against supervised release under § 5D1.1(c) is hortatory
rather than mandatory. United States v. Dominguez-Alvarado, 695 F.3d 324,
329 (5th Cir. 2012). Where § 5D1.1(c) applies, “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 case.” Id.; § 5D1.1, comment. (n.5). The district court’s particularized
statements concerning Martinez’s history of repeated immigration violations,
though brief, were adequate to explain why a supervised release term was
appropriate to provide “an added measure of deterrence and protection” in his
case. See § 5D1.1, comment. (n.5); see Dominguez-Alvarado, 695 F.3d at 328-30.
Thus, with respect to the adequacy of the district court’s explanation of the



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                                   No. 12-40041

sentence, Martinez cannot satisfy his burden under plain error review of
showing an effect on his substantial rights.
      With respect to substantive reasonableness, Martinez contends that the
district court erred because it failed to account for the guidance under § 5D1.1(c)
against supervised release. One basis for error in a defendant’s sentence is
failure by the district court to account for a factor that should receive significant
weight. United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Here, the
district court’s reasons for the sentence indicated that the particular facts and
circumstances of this case warranted the imposition of the punishment imposed,
including the supervised release term. See § 5D1.1, comment. (n.5). “[T]he
sentencing judge is in a superior position to find facts and judge their import
under [18 U.S.C.] § 3553(a) with respect to a particular defendant.” United
States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). Martinez has
not demonstrated plain error regarding the substantive reasonableness of his
sentence. See Puckett, 556 U.S. at 135.
      AFFIRMED.




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