     Case: 12-40533       Document: 00512170333         Page: 1     Date Filed: 03/11/2013




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

                                                                            FILED
                                                                          March 11, 2013
                                     No. 12-40533
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

versus

JUAN GEOVANY GUARACA-DOMINGUEZ, Also Known as Juan Guaraca,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                No. 2:11-CR-1158-1




Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*


       Juan Guaraca-Dominguez appeals the sentence imposed on his guilty-plea
conviction of illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(1). He

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40533

argues for the first time on appeal that his term of supervised release (“SR”) was
procedurally unreasonable (1) because the district court did not explain why it
imposed the term despite the statement in U.S. Sentencing Guideline § 5D1.1(c),
which indicates that SR should not ordinarily be imposed when the defendant
is a deportable alien, and (2) because the court gave no notice of its intent to
depart from § 5D1.1(c). In addition, Guaraca-Dominguez contends that his sen-
tence is not entitled to a presumption of reasonableness on appellate review and
is substantively unreasonable because the court failed to take § 5D1.1(c) into
account.
      Because Guaraca-Dominguez did not raise his objections in the district
court, review is for plain error. See United States v. Dominguez-Alvarado, 695
F.3d 324, 327–28 (5th Cir. 2012) (reviewing procedural reasonableness); United
States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010) (reviewing substantive reasona-
bleness). To prevail, he must show a forfeited error that is clear or obvious and
affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009).
Even if he makes such a showing, this court has the discretion to correct the
error, but only if it “seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Id. (internal quotation marks and citation omitted).
      Guaraca-Dominguez has not demonstrated that the district court plainly
erred in imposing a term of SR. See Dominguez-Alvarado, 695 F.3d at 327–30.
In making its decision, the court adopted the presentence report (“PSR”), which
summarized § 5D1.1(c) and listed Guaraca-Dominguez’s criminal history and
deportation. See United States v. Rodriguez, 523 F.3d 519, 525–26 (5th Cir.
2008). The court also considered Guaraca-Dominguez’s arguments in favor of a
downward departure or variance and rejected them based on the nature of his
prior offense. The court stated that, in making its decision, it had considered the
sentencing guidelines and the 18 U.S.C. § 3553 factors and that the “sentence
imposed was sufficient but not greater than necessary to impose an appropriate
punishment.”

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                                  No. 12-40533

      The court’s explanation was sufficient. See id. at 525–26; United States
v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Although the court referenced
“punishment”SSa factor Guaraca-Dominguez argues cannot be considered when
the court decides whether to impose SRSSit nevertheless gave a “particularized
explanation and concern” that justified the term of SR.           See Dominguez-
Alvarado, 695 F.3d at 329–30. Moreover, because the SR term was within the
statutory and guideline ranges for the offense of conviction, it was not a depar-
ture, so no notice was required. See id. at 329.
      As for substantive reasonableness, the SR term was a guideline sentence
notwithstanding § 5D1.1(c), see id., and thus is entitled to a rebuttable presump-
tion of reasonableness on appellate review, see United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009). Although Guaraca-Dominguez argues that his sentence
is unreasonable because the court failed to take § 5D1.1(c) into account, the court
was aware of that provision, because it was discussed in the PSR, which the
court adopted without objection from Guaraca-Dominguez. Moreover, because
the court exercised its discretion to order a guideline sentence, see Dominguez-
Alvarado, 695 F.3d at 329, we infer that it considered all the guideline factors
for a fair sentence, Mares, 402 F.3d at 519. In view of the foregoing, Guaraca-
Dominguez fails to overcome the presumption that his sentence is reasonable.
See Cooks, 589 F.3d at 186.
      The judgment of sentence is AFFIRMED.




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