FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                   November 20, 2007
                                 TENTH CIRCUIT
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 07-2030
          v.                                             (D. of N.M.)
 MARTIN GARCIA-CASTANEDA,                       (D.C. No. CR-06-1516-MCA)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges. **


      Martin Garcia-Castaneda appeals his sentence for illegal reentry after being

deported, in violation of 8 U.S.C. §§ 1326(a)(1) and (2). The district court

sentenced Garcia-Castaneda to 70 months imprisonment, at the bottom of the

applicable sentencing guideline range. The court also imposed three years of

supervised release. The court’s order specified Garcia-Castaneda’s supervised



      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
release would actually be unsupervised, because Garcia-Castaneda will be

deported from the United States when he concludes his term in prison. Garcia-

Castaneda now argues that a term of “unsupervised” supervised release is an

unreasonable sentence.

      We review the sentence imposed for reasonableness under the statutory

factors outlined in 18 U.S.C. § 3553(a). United States v. Hildreth, 

,

1127 (10th Cir. 2007). Reasonableness involves both procedural and substantive

components: “To impose a procedurally reasonable sentence, a district court must

calculate the proper advisory Guidelines range and apply the factors set forth in

§ 3553(a). A substantively reasonable sentence ultimately reflects the gravity of

the crime and the § 3553(a) factors as applied to the case.” 

omitted). Garcia-Castaneda does not challenge the procedural reasonableness of

his sentence because he does not argue the court incorrectly calculated the

applicable guideline range or failed to consider the § 3553(a) factors. Instead he

argues the terms of his supervised release are substantively unreasonable because

they do not reflect the § 3553(a) factors as applied to his case.

      Garcia-Castaneda failed to raise his substantive unreasonableness argument

in the sentencing court, so we review only for plain error. See United States v.

Lopez-Flores, 

, 1221 (10th Cir. 2006). We have previously

recognized a narrow exception to plain error review that does not apply here. In

Lopez-Flores, we declined to review for plain error when the defendant has failed

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to object to the length of his sentence, and in United States v. Mancera-Perez, —

F.3d —, No. 06-2059, 

at *4 (10th Cir. Oct. 1, 2007), we

established the exception applies only when the defendant has already made an

argument for a lesser sentence during pre-sentence arguments. Admittedly

Garcia-Castaneda, like defendants who challenge the length of their sentences,

contests the substantive reasonableness of his supervised release; but in this case

“the usual reasons for requiring a contemporaneous objection apply” because

Garcia-Castaneda could have given the district court the opportunity to remedy

any unreasonableness when it announced Garcia-Castaneda’s supervised release

would be unsupervised. 

(citing United States v.

Castro-Juarez, 

, 433–34 (7th Cir. 2005)).

      “Plain error occurs when there is (1) error, (2) that is plain, which (3)

affects substantial rights, and which (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” 

(quoting United States v. Gonzalez-Huerta, 

, 732 (10th Cir. 2005)).

We conclude the district court committed no error in sentencing Garcia-

Castaneda.

      Garcia-Castaneda argues “unsupervised supervised release” is per se

unreasonable because the goal of supervised release—the supervision of the

defendant—cannot be achieved. Garcia-Castaneda’s argument amounts to a claim

that deportation is an unreasonable condition of supervised release because a

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defendant cannot be supervised outside of the United States. See United States v.

Brown, 

, 239 (5th Cir. 1995) (quoting Probation Manual, Guide to

Judiciary Policies and Procedures IV, § 18 as providing for supervision only

“until the person actually leaves the United States.”).

      The district court did not err by imposing an unsupervised term of

supervised release in the context of a defendant who will be deported. Congress

has required that supervised release be supervised only “to the degree warranted

by the conditions specified by the sentencing court.” 18 U.S.C. § 3624(e). And

Congress has recognized deportation as an acceptable condition of supervised

release even though the defendant cannot be supervised after deportation: “If an

alien defendant is subject to deportation, the court may provide, as a condition of

supervised release, that he be deported and remain outside the United States.” 18

U.S.C. § 3583(d); see also 8 U.S.C. § 1252(h) (“[S]upervised release . . . shall not

be grounds for deferral of deportation.”); United States Sentencing Guidelines

(“USSG”) § 5D1.3(d)(6) (naming deportation as a special condition of supervised

release). Finally, this court has recognized illegal reentry subsequent to

deportation as a violation of supervised release, even though the defendant was

unsupervised subsequent to his deportation. United States v. Rodriguez-

Quintanilla, 

, 1256 (10th Cir. 2006).

      Furthermore, in this situation, unsupervised supervised release serves the

goals of the § 3553(a) sentencing factors. “Sentencing courts, in determining the

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conditions of a defendant’s supervised release, are required to consider, among

other factors, ‘the nature and circumstances of the offense and the history and

characteristics of the defendant,’ ‘the need . . . to afford adequate deterrence to

criminal conduct; . . . [and the need] to protect the public from further crimes of

the defendant.’” United States v. Johnson, 

, 59 (2000) (quoting 18

U.S.C. § 3553(a)). We agree with the United States that the deterrent effect of a

supervised release term on a defendant like Garcia-Castaneda—who may try again

to reenter the United States—justifies the sentence conditions.

      If Garcia-Castaneda enters the United States again during his term of

supervised release, he will be subject to significant additional prison time. A

defendant convicted for violation of supervised release may face (1) consecutive

prison terms and (2) additional criminal history points, both of which add

appreciably to a potential sentence. See 

(upholding sentence for revocation of supervised release added consecutively to

sentence for illegal reentry); USSG § 4A1.1(d) (adding criminal history points for

sentencing purposes when offense was committed while on supervised release);

United States v. Akinyemi, 

, 780 (7th Cir. 1997) (upholding

application of USSG § 4A1.1(d) to illegal reentry after deportation during term of

supervised release). This risk is sufficient to make the term of unsupervised

supervised release a reasonable deterrent and thereby satisfy the § 3553(a)

sentencing factors.

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Accordingly, we AFFIRM.

                                Entered for the Court

                                Timothy M. Tymkovich
                                Circuit Judge




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