Case: 12-40134     Document: 00512041727         Page: 1     Date Filed: 11/02/2012




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

                                                                            FILED
                                                                         November 2, 2012
                                     No. 12-40134
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

PAULO OZIEL MONTOYA-RODRIGUEZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 2:11-CR-1069-1


Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
        Convicted of illegal reentry into the United States, Paulo Oziel Montoya-
Rodriguez was sentenced to 24-months imprisonment and a within-Guidelines,
two-year supervised-release term.             Challenging both the procedural and
substantive reasonableness of his sentence, he contends supervised release was
improper under Guideline § 5D1.1(c) because: it was not statutorily required;
and he is likely to be deported after his imprisonment. Guideline § 5D1.1(c)
provides: “[a] court ordinarily should not impose a term of supervised release



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40134

. . . [when] supervised release is not required by statute and the defendant is a
deportable alien who likely will be deported after imprisonment.”
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 

, 51 (2007). In that respect,
its application of the Guidelines is reviewed de novo; its factual findings, only for
clear error. E.g., United States v. Cisneros-Gutierrez, 

, 764 (5th Cir.
2008); United States v. Villegas, 

, 359 (5th Cir. 2005).
      Because Montoya failed to object in district court to his sentence, however,
review is only for plain error. E.g., United States v. Peltier, 

, 391-92
(5th Cir. 2007). Montoya must show a clear or obvious error that affected his
substantial rights. E.g., Puckett v. United States, 

, 135 (2009). He
fails to do so.
      Regarding procedural error, Montoya has shown the district court failed
to account for § 5D1.1(c) in imposing supervised release and, therefore,
committed clear or obvious error. E.g., United States v. Blocker, 

,
416 (5th Cir. 2010) (straightforward misapplication of Guidelines constitutes
clear or obvious error). But Montoya fails to show this error affected his
substantial rights.
      Imposition of supervised release under § 5D1.1(c) is discretionary. United
States v. Dominguez-Alvarado, 

, at *3 (5th Cir. 12 Sept. 2012).
When applicable, supervised release should not be imposed absent a
determination that “it would provide an added measure of deterrence and
protection based on the facts and circumstances of a particular case”. U.S.S.G.
§ 5D1.1, cmt. n.5. The district court’s statements concerning Montoya’s repeated
immigration violations adequately explained why supervised release would
provide    “an    added   measure      of       deterrence    and   protection”.   Id.;

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                                  No. 12-40134

Dominguez-Alvarado, 

, at *3 (particularized and case-specific
statements justified supervised release). Given that explanation, Montoya has
not shown his substantial rights were affected.
      Montoya also contends the district court committed procedural error by
failing to give notice of its intended application of § 5D1.1(c), referring to the
court’s decision as a “departure”.       The imposition of within-Guidelines
supervised release, however, does not trigger departure analysis. E.g.,
Dominguez-Alvarado, 

, at * 3 (imposition of within-Guidelines
supervised release under § 5D1.1(c) not an upward departure).
      Regarding substantive reasonableness, Montoya contends the district
court erroneously failed to account for § 5D1.1(c)’s counseling against supervised
release. In imposing a sentence, failure to account for a factor that should
receive significant weight constitutes error. United States v. Cooks, 

,
186 (5th Cir. 2009). Again, in the light of the facts and circumstances of
Montoya’s case, the court imposed supervised release. “[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, 

, 339 (5th Cir. 2008).
      AFFIRMED.




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