Case: 16-40840      Document: 00513908085         Page: 1    Date Filed: 03/13/2017




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

                                    No. 16-40840
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                            March 13, 2017
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


                                                 Plaintiff-Appellee

v.

JOSE PEREZ-MALDONADO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:15-CR-1469-1


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Jose Perez-Maldonado appeals the 41-month within-guidelines sentence
imposed following his guilty-plea conviction for illegal reentry after
deportation, in violation of 8 U.S.C. § 1326. Perez-Maldonando argues that the
district court committed procedural error by failing to recognize that it had the
authority to grant his motion for a downward variance, based on then pending
amendments to U.S.S.G. § 2L1.2.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40840

      Although Perez-Maldonado filed a sentencing memorandum seeking a
downward variance in light of the pending amendments to § 2L1.2 and argued
at sentencing that the court should grant a downward variance because a
sentence under the 2015 Guidelines was greater than necessary to satisfy the
goals of 18 U.S.C. § 3553(a), he never suggested or argued that the district
court’s failure to do so was the result of its failure to recognize its authority to
vary from the guidelines range. Accordingly, we review for plain error. United
States v. Juarez, 

, 253-54 (5th Cir. 2010).
      Though the district court stated at sentencing that it was “bound by the
sentencing guidelines effective as of the time of sentencing,” a reading of the
entirety of the record reflects that the district court’s statements were a
recognition that it must apply the version of the Guidelines in effect at the time
of sentencing. See United States v. Rodarte-Vasquez, 

, 322 (5th
Cir. 2007). The court listened to Perez-Maldonado’s arguments and considered
the request for a downward variance based on the amendments to § 2L1.2.
After imposing the sentence, the court stated that it believed a sentence within
the current guidelines range was appropriate in light of the factors of § 3553(a).
Additionally, the district court specifically stated that it was applying “the
Sentencing Reform Act of 1984, as modified by the Supreme Court case of
[United States v.] Booker, [

(2005),]” which rendered the
Sentencing Guidelines advisory.       Perez-Maldonado fails to show that the
district court erroneously believed it lacked the authority to impose a
downward variance; thus, he does not show clear or obvious error. See Puckett
v. United States, 

, 135 (2009).
      Perez-Maldonado also challenges the three-year term of supervised
release imposed by the district court. He contends that the district court
committed procedural error by failing to explain its decision to impose



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                                  No. 16-40840

supervised release on a deportable alien. Because he did not object to the
district court’s imposition of supervised release, review is for plain error only.
See United States v. Dominguez-Alvarado, 

, 328 (5th Cir. 2012).
      Under U.S.S.G. § 5D1.1, a “court ordinarily should not impose a term of
supervised release in a case in which supervised release is not required by
statute and the defendant is a deportable alien who likely will be deported after
imprisonment.” § 5D1.1(c). Section 5D1.1(c) is “hortatory,” and the otherwise
applicable supervised release term remains the guidelines sentence for a
deportable alien if the court chooses to impose supervised release. United
States v. Becerril-Pena, 

, 350-51 (5th Cir. 2013); Dominguez-

. “This section does not evince an intent to confer a
benefit upon deportable aliens that is not available to other defendants.”

.
      The court implicitly considered the Guideline when it considered the
Presentence Report (PSR), which advised the court of § 5D1.1(c) and specified
that Perez-Maldonado is an undocumented alien subject to possible
deportation proceedings. See United States v. Cancino-Trinidad, 

,
606 (5th Cir. 2013) (recognizing that the district court’s adoption of the PSR
generally supports the inference that it took into account the sentencing
considerations contained therein).     Because the district court stated that
Perez-Maldonado’s sentence was appropriate under the factors of § 3553(a),
the imposition of supervised release was not clear or obvious error.          See

, 351; Dominguez-

-30;
see also § 5D1.1, comment. (n.5).
      The judgment of the district court is AFFIRMED.




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