     Case: 12-40177       Document: 00512325250         Page: 1     Date Filed: 07/30/2013




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

                                                                            FILED
                                                                            July 30, 2013
                                     No. 12-40177
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE PEDRO ACOSTA-ESCOBAR, true name Pedro Jose Acosta-Escobar,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:11-CR-1057-1


Before STEWART, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Jose Pedro Acosta-Escobar appeals the sentence imposed following his
guilty plea conviction for being an alien found unlawfully present in the United
States following deportation. The district court sentenced Acosta-Escobar to 51
months of imprisonment to be followed by three years of supervised release.
       According to Acosta-Escobar, his sentence is procedurally and
substantively unreasonable because the district court imposed a term of
supervised release despite the Sentencing Guidelines’ direction in U.S.S.G.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40177

§ 5D1.1(c) that “ordinarily” no term of supervised release should be imposed if
the defendant is a deportable alien. He asserts that the sentence is procedurally
unreasonable because the district court gave an inadequate explanation for
imposing a term of supervised release, the imposition of supervised release was
an unexpected departure from the Guidelines, and the district court did not
provide him with notice of its intent to depart from the guidelines range. Acosta-
Escobar contends that his sentence is substantively unreasonable because the
district court failed to consider § 5D1.1(c), even though the factor should have
been given significant weight.
      Because Acosta-Escobar did not raise his claims of error regarding the
procedural reasonableness of his sentence “in a manner that could have placed
the district court on notice of the error he now asserts,” our review is limited to
plain error. See United States v. Dominguez-Alvarado, 695 F.3d 324, 327 (5th
Cir. 2012). To show plain error, Acosta-Escobar 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, this court has the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id. We need not decide
whether Acosta-Escobar properly preserved an objection to the substantive
reasonableness of his sentence because his argument fails even under an
abuse-of-discretion standard. See United States v. Becerril-Pena, 714 F.3d 347,
349 n.4 (5th Cir. 2013).
      The term of supervised release imposed on Acosta-Escobar was within the
statutory and guidelines range for his offense of conviction; therefore, it did not
trigger a “departure analysis.” See Dominguez-Alvarado, 695 F.3d at 329. Thus,
his contention that the district court was required to give notice of its departure
from the Guidelines fails. See id.
      Our review of the record reveals that the district court considered relevant
facts that justified a term of supervised release. The presentence report alerted

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                                  No. 12-40177

the district court to the 2011 amendment to § 5D1.1(c), and the district court
considered the information in the presentence report along with the history and
characteristics of Acosta-Escobar. The district court’s particularized remarks at
sentencing evince a concern with the need for deterrence and protection, which
are relevant factors for a court to consider in deciding whether to impose a term
of supervised release. See Dominguez-Alvarado, 695 F.3d at 329; § 5D1.1,
comment. (n.5). Thus, Acosta-Escobar has not shown that the district court
committed reversible plain error in imposing the supervised release term. See
Puckett, 556 U.S. at 135.
      Acosta-Escobar’s assertion that his sentence is substantively unreasonable
also lacks merit. The three-year term of supervised release term imposed in this
case was within the advisory guidelines range for the offense. The record shows
that the district court was aware of § 5D1.1(c), and Acosta-Escobar has not
overcome the presumption that the district court, in imposing a term of
supervised release, considered the relevant sentencing factors. See United
States v. Cancino-Trinidad, 710 F.3d 601, 607-08 (5th Cir. 2013).
      Finally, Acosta-Escobar contends that the district court erred by treating
his 2004 felony conviction in Illinois for “Aggravated Criminal Sexual Abuse” as
a crime of violence for purposes of U.S.S.G. § 2L1.2(b)(1)(a)(ii). He argues that
his statute of conviction covers conduct that is outside the generic, contemporary
meaning of “sexual abuse of a minor” or “statutory rape” because the statute sets
the age of consent at 17, whereas the generic, contemporary meaning of the term
“minor” is 16. As Acosta-Escobar concedes, these arguments are foreclosed by
our decisions in United States v. Rodriguez, 711 F.3d 541, 562-63 (5th Cir. 2013)
(en banc), petition for cert. filed (June 6, 2013) (No. 12-10695), and United States
v. Quiroga-Hernandez, 698 F.3d 227, 229 (5th Cir. 2012).
      Accordingly, the judgment of the district court is AFFIRMED.




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