11-5321-cr
United States v. Garcia

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall Courthouse, 40 Foley Square, in the City of New York, on the 28th day of
January, two thousand thirteen.

Present:
         AMALYA L. KEARSE,
         ROBERT A. KATZMANN,
                     Circuit Judges.
         JED S. RAKOFF,
                     District Judge.*
________________________________________________

UNITED STATES OF AMERICA,

           Appellee,

                  v.                                            No. 11-5321-cr

MARLON ENRIQUE GARCIA,

         Defendant-Appellant.
________________________________________________

For Appellee:                     Emily Berger & Michael P. Canty, Assistant United States
                                  Attorneys, for Loretta E. Lynch, United States Attorney for the
                                  Eastern District of New York, Brooklyn, NY.


       *
          The Honorable Jed S. Rakoff, of the United States District Court for the Southern
District of New York, sitting by designation.
For Defendant-Appellant:           David A. Lewis, Federal Defenders of New York, Inc., New
                                   York, NY.



        Appeal from the United States District Court for the Eastern District of New York
Irizarry, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the decision of the district court be and hereby is AFFIRMED.

       Defendant-Appellant Marlon Enrique Garcia appeals from his judgment of conviction

and sentence entered on December 21, 2011, sentencing him to 72 months of imprisonment and

3 years of supervised release for illegal reentry into the United States in violation of 8 U.S.C. §§

1326(a) & (b). Garcia illegally entered the United States when he was 13 or 14 years old and

was convicted of multiple crimes as a young man, including aggravated assault. After being

convicted of assaulting a police officer, he was deported in 2007. Since his illegal reentry into

the country nine months later, he has been arrested multiple times and was again convicted for

assault. Following an arrest for possession of a forged instrument in April 2011, immigration

officials discovered that he had returned to the United States illegally, and he was charged with

illegal reentry. We assume the parties’ familiarity with the underlying facts and procedural

history of this case, as well as with the issues on appeal.

       Garcia challenges only his term of supervised release, contending that the district court

committed procedural error by failing to adequately explain why a period of supervised release

was proper in light of a newly amended provision of the United States Sentencing Guidelines.

The provision, which took effect just six weeks before Garcia’s sentencing hearing, states that

“[t]he court ordinarily should not impose a term of supervised release in a case in which

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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). The comments to the amendment

elaborate that, under these circumstances, supervised release is normally “unnecessary” because

“the need to afford adequate deterrence and protect the public ordinarily is adequately served by

a new prosecution [for illegal reentry].” Id. cmt. n.5. However, the comments also clarify that

courts “should . . . 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. (emphasis added).

       Because Garcia failed to object to his sentence below, we review for plain error. United

States v. Villafuerte, 502 F.3d 204, 207 (2d Cir. 2007). We, in fact, find no error with the district

court’s decision. A district court must provide reasons for the imposition of a particular

sentence, and failure to do so renders the sentence procedurally unreasonable. United States v.

Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). During sentencing in this case, however,

the district court explicitly recognized the applicability of the new provision of the Guidelines

and stated:

       [W]hile I understand that the new guidelines recommend in cases where the
       defendant is likely to be deported that no term of supervised release be imposed[,
       given] that I have some doubts about the defendant’s ability to contain himself
       and not return to the United States, I am going to impose a term of three years of
       supervised release . . . [with the special condition] not to reenter the United States
       illegally.

J. App’x at 83.

       Despite Garcia’s protestations, the court offered an adequate explanation. We agree with

a number of our sister circuits that supervised release is appropriate even under the new

Guidelines if the district court finds that a defendant is particularly likely to reenter the country

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illegally again in the future. See United States v. Gonzalez-Alvarez, No. 11-50508, 2012 WL

5462571 (9th Cir. Nov. 9, 2012); United States v. Lawrence, No. 11-4562, 2012 WL 5395798

(3d Cir. Nov. 6, 2012); United States v. Montoya-Rodriguez, No. 12-40134, 2012 WL 5377780

(5th Cir. Nov. 2, 2012). Here, reading the district court’s statement in the context of the entire

sentencing hearing, it is clear that it thought supervised release was necessary to provide added

deterrence because Garcia had already illegally returned to the country once and it doubted the

defendant’s ability to “contain himself” from doing so again.1 This sufficiently informs the

defendant about the reasons for the sentence and satisfies the court’s procedural obligations.2

See Gonzalez-Alvarez, 2012 WL 5462571, at *1 (finding a similar explanation sufficient where

the court said “I am trying my best to impose a sentence that will deter [the defendant] from

coming back, but I have no great confidence that it will, and I think supervised release is

necessary as an additional consequence to add to the deterrence.” (internal quotation marks

omitted)).




       1
          The district court was also concerned about Garcia’s violent criminal history and
wanted to “protect[ ] the public from any future crime.” J. App’x at 82. The court did not
specifically mention this concern when imposing supervised release, but, looking at the
sentencing hearing as a whole, Garcia should have been able to tell that it was another reason for
the court’s decision. The Fifth Circuit found a district court’s explanation for imposing
supervised release adequate where the court stressed the defendant’s violent criminal history and
danger to the community. See United States v. Lara-Espinoza, No. 11-11180, 2012 WL
3984421 (5th Cir. Sept. 12, 2012).
       2
          However, where the crime at issue is not an immigration-related offense and the
defendant does not have a history of illegal reentry into the United States or a particularly violent
track record, a more detailed explanation on the part of the district court might be warranted.
The new provision, after all, counsels that supervised release should ordinarily not be imposed
where the defendant is likely to be deported, and courts should be careful to avoid rendering this
new guideline completely meaningless.

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       Lastly, we cannot accept Garcia’s contention that the district court was also required to

explain how the imposition of supervised release would actually result in a marginal increase in

deterrence. The new Guidelines “leav[e] within the discretion of the sentencing court the option

of imposing supervised release in uncommon cases where added deterrence and protection are

needed.” United States v. Dominguez-Alvarado, 695 F.3d 324, 329 (5th Cir. 2012) (emphasis

added). The district court adequately explained why it thought added deterrence was needed in

this case. Nothing more was required. We have considered Garcia’s remaining arguments and

find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED.



                                                 FOR THE COURT:
                                                 CATHERINE O’HAGAN WOLFE, CLERK




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