FILED
                                                                     United States Court of Appeals
                                      PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                          July 3, 2018

                                                                          Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                            Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-2124

MANUEL CHAVEZ-MORALES,

      Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                           for the District of New Mexico
                          (D.C. No. 2:16-CR-04013-WJ-1)
                       _________________________________

John V. Butcher, Assistant Federal Public Defender (Michael A. Keefe, Assistant Federal
Public Defender on the briefs), Albuquerque, New Mexico, for Defendant – Appellant.

Paul J. Mysliwiec, Assistant United States Attorney (James D. Tierney, Acting United
States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff –
Appellee.
                        _________________________________

Before MATHESON, McKAY, and McHUGH, Circuit Judges.
                 _________________________________

McHUGH, Circuit Judge.
                    _________________________________


      Manuel Chavez-Morales appeared before the district court following his fifth

conviction for an illegal reentry offense. At sentencing, Mr. Chavez-Morales argued

that higher wages in the United States motivated his decision to illegally reenter the
United States. Focusing heavily on Mr. Chavez-Morales’s criminal history and noting

that none of the earlier sentences deterred Mr. Chavez-Morales from reoffending, the

district court imposed an upward variant sentence of thirty-six months’

imprisonment. The district court also imposed a three-year term of supervised

release.1

       On appeal, Mr. Chavez-Morales challenges the procedural reasonableness of

his term of imprisonment. Specifically, he contends the district court did not

meaningfully consider his argument that economic opportunities motivated his

decision to illegally reenter the United States and thereby mitigated the seriousness

of his offense. Mr. Chavez-Morales separately contends the district court committed

plain error by imposing a term of supervised release without acknowledging or

considering United States Sentencing Guidelines Manual (U.S.S.G.) § 5D1.1(c),

which states a court “ordinarily” should not impose a term of supervised release

when “the defendant is a deportable alien who likely will be deported after

imprisonment.”

       We affirm the district court’s judgment. As to Mr. Chavez-Morales’s term of

imprisonment, the transcript of the sentencing hearing establishes that, on three

occasions, the district court addressed Mr. Chavez-Morales’s economic motivation

argument. As to the imposition of a term of supervised release, while the district

       1
         The term of supervised release was, in fact, “unsupervised with mandatory
and standard conditions” and the special condition that Mr. Chavez-Morales “not
illegally re-enter the United States.” ROA Vol. 3 at 30. Although Mr. Chavez-
Morales was not subject to supervision, for ease of reference, we refer to the term as
a term of supervised release.
                                           2
court erred by not acknowledging and considering U.S.S.G. § 5D1.1(c), Mr. Chavez-

Morales has not carried his burden on the third prong of the plain error analysis.

                               I.     BACKGROUND

      A.     Mr. Chavez-Morales’s History, Characteristics, & Offense Conduct

      Mr. Chavez-Morales, age fifty-six at the time of his most recent offense, is a

citizen of Mexico. As a result of his family’s financial struggles, Mr. Chavez-

Morales entered the work force at a young age. By the 1980s, Mr. Chavez-Morales

lived in the United States. According to records obtained by probation services, Mr.

Chavez-Morales was the subject of an order of removal issued in 1986. Whether the

order of removal was executed is not clear, but Mr. Chavez-Morales was present in

the United States in the mid and late 1990s, as is evident by four Colorado

convictions. By January 2000, however, Mr. Chavez-Morales had returned to

Mexico.

      On January 30, 2000, Mr. Chavez-Morales was detained when trying to enter

the United States with fifty-three pounds of marijuana. He was deported in August

2000. In June 2002, Mr. Chavez-Morales returned to the United States, resulting in a

conviction for reentry of a deported alien previously convicted of an aggravated

felony, for which he incurred a sentence of twenty-four months’ imprisonment,

followed by three years’ unsupervised release. Mr. Chavez-Morales was deported in

March 2004. In December 2006, Mr. Chavez-Morales attempted to cross into the

United States, presenting fraudulent documents to Border Patrol agents at a port of

entry. Mr. Chavez-Morales pleaded guilty to the offense of illegal reentry and

                                           3
incurred a sentence of thirty-seven months’ imprisonment, followed by two years’

unsupervised release. Mr. Chavez-Morales was deported in September 2009. In June

2011, Border Patrol agents found Mr. Chavez-Morales in the United States, which

resulted in Mr. Chavez-Morales’s third illegal reentry conviction, for which he

incurred a sentence of twenty months’ imprisonment. Mr. Chavez-Morales was

deported in November 2012. In March 2015, Border Patrol agents, once again, found

Mr. Chavez-Morales in the United States, leading to Mr. Chavez-Morales’s fourth

illegal reentry conviction, for which he incurred a sentence of eighteen months’

imprisonment.2 Mr. Chavez-Morales was deported on July 13, 2016. On August 19,

2016, roughly one month after being deported, Mr. Chavez-Morales was found in the

United States, leading to the reentry of a removed alien conviction underlying the

present appeal.

                        B.     Plea & Sentencing Proceedings

      Mr. Chavez-Morales and the government negotiated a fast-track plea

agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) and U.S.S.G.

§ 5K3.1. The fast-track plea agreement estimated a Sentencing Guidelines range of

nine to fifteen months and, if accepted by the district court, would have obligated the

court to impose a within-Guidelines sentence. Focusing on Mr. Chavez-Morales’s

history of reentry offenses and the need to impose a sentence that would satisfy the


      2
        In total, Mr. Chavez-Morales’s four prior illegal reentry convictions resulted
in sentences totaling ninety-nine months’ imprisonment and in Mr. Chavez-Morales
serving, seven years, two months, and eleven days in prison or immigration detention
awaiting deportation.
                                           4
18 U.S.C. § 3553(a) factors, including adequately deterring Mr. Chavez-Morales, the

district court rejected the fast-track plea agreement. The district court indicated,

however, that if Mr. Chavez-Morales entered into a non-fast-track plea agreement, a

within-Guidelines sentence would likely satisfy the § 3553(a) factors.3 But, a month

after rejecting the fast-track plea agreement, the district court informed the parties

that even if Mr. Chavez-Morales entered into a non-fast-track plea agreement with a

Guidelines range of twenty-one to twenty-seven months’ imprisonment, the district

court might vary upwards. The district court granted Mr. Chavez-Morales’s motion to

formally withdraw the guilty plea he entered pursuant to the fast-track plea

agreement. Thereafter, a grand jury indicted Mr. Chavez-Morales on one count of

illegal reentry by a removed alien after deportation subsequent to a conviction for an

aggravated felony, in violation of 8 U.S.C. §§ 1326(a), (b). Mr. Chavez-Morales then

entered a straight-up guilty plea, without a written plea agreement.

      Based on a total offense level of ten and a criminal history category of V, a

presentence investigation report (“PSR”) established a Guidelines range of twenty-

one to twenty-seven months’ imprisonment. See U.S.S.G. ch. 5 pt. A (sentencing

table). Relying on Mr. Chavez-Morales’s 8 U.S.C. §§ 1326(a)(1), (b)(2) offense

being a Class C felony, the PSR established a Guidelines range for supervised release

of one to three years. However, the PSR noted that “[p]ursuant to U.S.S.G.

      3
        Under U.S.S.G. § 5K3.1, a defendant who enters into a fast-track plea
agreement may receive up to a four-level reduction to his offense level. Under the
negotiated fast-track plea agreement, Mr. Chavez-Morales was to receive the full
four-level reduction so long as he had not previously sustained a conviction for a
serious violent felony and did not have a criminal history category of VI.
                                            5
§ 5D1.1(c), the 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.” ROA Vol. 2 at 29.

Neither the Government nor Mr. Chavez-Morales objected to the Guidelines

calculations in the PSR, and the district court adopted the factual findings and

Guidelines calculations set out in the PSR.

      The government advocated for an upward variant sentence of thirty-eight

months’ imprisonment, arguing that Mr. Chavez-Morales’s longest previous sentence

of thirty-seven months did not adequately deter him from reentering the United

States. Mr. Chavez-Morales argued for a within-Guidelines sentence, highlighting his

good work ethic while in detention awaiting sentencing, his plan to open a taqueria in

Mexico after deportation, and his economic motivation for illegally reentering the

United States. When Mr. Chavez-Morales’s counsel compared the wages Mr.

Chavez-Morales could earn in Mexico to the hourly wages in the United States, the

district court interjected and the following colloquy occurred:

      [COUNSEL:] . . . He came back here every time, Your Honor, to have
      opportunities. I think I’ve set forth in the Sentencing Memorandum the
      amount of money he was making when he worked in Mexico, something
      like $7 a day, and he can come over here and make in the range of $15 an
      hour doing the same kind of work.
             THE COURT: How much is he making in prison?
             [COUNSEL]: Nothing.
             THE COURT: Well, you get a little bit.
             [COUNSEL]: A dollar a day, or whatever it is, yes.
             THE COURT: It’s less than what he can make in Mexico; is that
      right?
             [COUNSEL]: Yes. The Court is right, over the last 15 years he’s
      spent 8 years, more than half of that, locked up. So again, this seems to be a

                                            6
       part of—it should become very clear. What’s very clear to all of us should
       become very clear to Mr. Chavez-Morales, and we hope that it does.

ROA Vol. 3 at 19–20.

       The district court commenced announcing its sentence by reciting the 18 U.S.C.

§ 3553(a) factors, placing emphasis on the need to promote respect for the law and the

need to adequately deter Mr. Chavez-Morales. See 18 U.S.C. § 3553(a)(2)(A), (B). In

discussing the need to promote respect for the law, the district court stated:

               Now, to promote respect for the law. You can’t help but look at this
       Presentence Report and come to the conclusion that the Defendant has no
       respect for the laws of the United States. I mean, I’m going to cite the fact
       that in the prior re-entry case, he was deported to Mexico on July the 13th,
       2016, and that’s referenced in Paragraph 29 of this Presentence Report
       where he was given 18 months custody, and then he was arrested again in
       the United States on August the 19th, 2016. So that’s just a little more than
       one month after he’s deported, he is arrested on this matter.
               Now, in the second Sentencing Memorandum, [counsel for Mr.
       Chavez-Morales] talked about the wages and the money that he can make
       here in the United States compared to what he can make in Mexico, but
       obviously to me he didn’t really give it a shot in Mexico, because he was
       deported on July 13, 2016, and he’s arrested within a little more than 30
       days here. So that just tends to ring hollow and just comes back to the point
       that he didn’t really try to make a go of it there.

ROA Vol. 3 at 25–26 (emphasis added). At this point, counsel for Mr. Chavez-Morales

interjected, stating that “the incentive was so strong to come back based on what he knew

he could earn. I don’t think things had changed that much in Mexico [during his last

prison sentence].” 

To which, the district court responded:

       I mean, I get that. I understand that wages in general are lower. But then
       you come back to, as much time as he’s served in prison in the United
       States, he could be making more if he was living and working in Mexico.
       Other than he gets a small inmate account at the detention facility, they’re
       not paying in detention what he could be earning in Mexico. So, again, it


                                              7
       comes back as a complete and total lack of respect for the laws of the
       United States.

court then discussed specific deterrence, noting that none of Mr. Chavez-

Morales’s four prior sentences deterred him from reentering the United States. In

discussing the need for specific deterrence, the district court harkened back to its earlier

conclusion that Mr. Chavez-Morales’s conduct evidenced a lack of respect for the laws of

the United States. Mr. Chavez-Morales’s counsel interjected again, and the following

interchange occurred:

               [COUNSEL]: Your Honor, if I could just say, on the lack of respect
       for the law, I would just say, I don’t think—on paper, clearly it appears
       total lack of respect for the law. But it’s not a situation where I think Mr.
       Chavez-Morales is thumbing his nose and saying, hey—I don’t think that’s
       the thought process that goes into this.
               I think the incentive is to come back to the United States, and again,
       I think it is more of an economic driven decision than it is sort of, you
       know, I don’t care what their laws are. . . .
               So I understand why the Court would say that. It makes sense in
       terms of the way you look at things on paper. I’m just saying, in terms of
       knowing Mr. Chavez-Morales over these past several months and working
       with him, I don’t think that’s really his attitude.
               THE COURT: Well, I’ll accept your representation that he doesn’t
       have a subjective intent that would indicate a lack of respect, but if you
       look at his conduct objectively, it clearly would suggest a lack of respect if
       for no other reason than that after being told you’re not going to be
       authorized to come here legally, you know, he’s back in the United States a
       little over 30 days after he’s deported on the previous re-entry conviction.
       And again, I could understand it if maybe that was the first go-around, but
       again, this is—is it the fourth or the fifth re-entry? This is the fifth re-entry
       conviction.
               So, you know, you get at least from a sentencing judge’s standpoint,
       you get to a point where you say, enough is enough. And I don’t know what
       else to do except impose a sentence that, again, satisfies the goals of
       sentencing, and is sufficient but not greater than necessary to satisfy those
       goals.

                                              8
       The district court then announced its sentence. Although inclined to impose a

48-month sentence, the district court credited Mr. Chavez-Morales’s good behavior and

work ethic while awaiting sentencing and settled on a sentence of thirty-six months’

imprisonment. On the matter of supervised release, the district court stated:

       After service of the sentence, the Defendant is placed on supervised release
       for a term of three years. The term is unsupervised with mandatory and
       standard conditions, and the following special condition. The Defendant
       shall not illegally re-enter the United States. And I hope this time around
       the Defendant will listen to what I’m telling him, and listen to what his
       lawyer told him. You will never, ever be authorized to come to the United
       States legally. So unless you want to essentially spend the rest of your life
       sitting in a U.S. prison cell, I strongly recommend that after you serve this
       sentence and you’re deported, you never return to the United States.

Mr. Chavez-Morales did not object to the term of imprisonment or to the term

of supervised release.

                                  II.    DISCUSSION

                             A.      Term of Imprisonment

       On appeal, Mr. Chavez-Morales argues that the district court failed to

“meaningfully consider” his argument that his economic motivation for illegally

reentering the United States mitigated the seriousness of his offense. Mr. Chavez-

Morales contends that this failing on the part of the district court amounted to

procedural error because the district court imposed an upward variant sentence

without adequately addressing one of Mr. Chavez-Morales’s arguments for a lower

sentence. The government contends that Mr. Chavez-Morales, by not objecting to the

adequacy of the district court’s consideration of and response to his economic

motivation argument, did not preserve the issue for appellate review and that, if we

                                             9
review the argument, we should do so under a plain error standard. In reply, Mr.

Chavez-Morales argues for an abuse of discretion standard of review but,

alternatively, presents an argument under the plain error standard. We discuss the

appropriate standard of review before turning to the merits of Mr. Chavez-Morales’s

argument that the district court committed procedural error.

1. Standard of Review

      United States v. Gantt, 

(10th Cir. 2012), provides guidance

regarding the standard we apply to review Mr. Chavez-Morales’s procedural error

argument. In Gantt, the defendant filed a sentencing memorandum raising several

arguments counseling against the above-Guidelines sentence the district court

indicated it was prepared to impose. 

, 1247. Mr. Gantt renewed his

arguments at the sentencing hearing; but, the district court imposed the previously

contemplated, above-Guidelines sentence. 

On appeal, Mr. Gantt argued

the district court committed procedural error by not adequately considering several of

his arguments before imposing its sentence. 

This court concluded Mr.

Gantt had failed to preserve his procedural reasonableness challenge to his sentence

because he never objected to the extent of the district court’s consideration of and

explanation for rejecting his arguments for a lesser sentence. See 

We

instructed that to preserve a procedural reasonableness challenge based on the

sentencing court’s failure to consider and explain its reasons for rejecting a

defendant’s argument for a lesser sentence, the defendant “needed to alert the court

that its explanation was inadequate, which ordinarily would require an objection after

                                           10
the court had rendered sentence.” Id.; see United States v. Pacheco-Donelson, ___

F.3d ___, 

, at *1 (10th Cir. June 22, 2018) (applying plain error

review to procedural challenge on appeal because “substantive objection did not

preserve the procedural issue on the adequacy of the findings”).

      Here, Mr. Chavez-Morales presented his economic motivation argument in a

sentencing memorandum filed subsequent to the district court indicating that it might

impose an above-Guidelines sentence. Mr. Chavez-Morales renewed his economic

motivation argument at the sentencing hearing. Before imposing its sentence, the

district court commented on Mr. Chavez-Morales’s economic motivation argument

three times, and Mr. Chavez-Morales did not raise an objection on the ground that the

district court’s comments on the argument did not amount to meaningful

consideration for procedural purposes. Thus, Mr. Chavez-Morales did not alert the

district court that its explanation was inadequate so as to permit the district court to

further consider and elaborate on its reasons for discounting the argument. Therefore,

in accord with Gantt, Mr. Chavez-Morales did not preserve his argument and the

argument is subject to plain error review.4



      4
        Mr. Chavez-Morales urges us to rely on United States v. Lopez-Avila, 

(10th Cir. 2011), to reach the opposite conclusion. In Lopez-Avila, we
concluded that a defendant’s initial argument on a matter preserved the argument for
appellate review where an objection would have been a “superfluous and futile
gesture” given the district court’s response to the argument. 

While Mr.
Chavez-Morales objecting to the substance of the district court’s reasons for rejecting
his economic motivation argument may have been futile, an objection regarding the
extent of the district court’s consideration of and response to his economic
motivation argument would not have been “superfluous and futile” because it would
                                            11
       Under plain error review, the defendant must establish that “(1) the district court

committed error; (2) the error was plain—that is, it was obvious under current

well-settled law; (3) the error affected the Defendant’s substantial rights; and (4) the error

seriously affected the fairness, integrity, or public reputation of judicial proceedings.”

(internal quotation marks omitted). “Because all four

requirements must be met, the failure of any one will foreclose relief.” 

Mr. Chavez-Morales did not present an argument for plain error review in

his opening brief, his advancement of a plain error argument in his reply brief is

sufficient to permit us to consider the argument under plain error review. See United

States v. Courtney, 

, 684 (10th Cir. 2016).

2. Analysis of Argument

       “[W]here a defendant has raised a nonfrivolous argument that the § 3553(a)

factors warrant a [sentence below that imposed by the district court], we must be able to

discern from the record that ‘the sentencing judge . . . considered whether the [sentence

imposed] actually conforms, in the circumstances, to the statutory factors.’” United States

v. Sanchez-Juarez, 

, 1117 (10th Cir. 2006) (quoting United States v.

Cunningham, 

, 676 (7th Cir. 2005)); see United States v. Estrada-Mederos,

, 1090 (7th Cir. 2015) (“The district court is required to adequately explain

the chosen sentence . . . . A judge who fails to mention a ground of recognized legal merit

. . . is likely to have committed an error or oversight.” (quotation marks and citations


have permitted the district court an opportunity to assess whether further discussion
of the argument was necessary to satisfy procedural requirements.
                                             12
omitted)). “Potential merit does not mean the sentencing court must accept the

argument, but it ordinarily will deserve explicit comment.” 

. And, courts have recognized that a defendant’s economic motivations

for committing an offense may be a meritorious mitigating argument under the

§ 3553(a) factors. See United States v. Arias-Lopez, 533 F. App’x 824, 827 & n.2

(10th Cir. 2013) (identifying economic motivation for illegal reentry as a “potentially

mitigating fact[]”); cf. Wisconsin v. Mitchell, 

, 485 (1993)

(“[S]entencing judges have considered a wide variety of factors in addition to

evidence bearing on guilt in determining what sentence to impose on a convicted

defendant. The defendant’s motive for committing the offense is one important

factor.” (citations omitted)). Accordingly, where Mr. Chavez-Morales argued that

economic incentives in the United States motivated him to commit his illegal reentry

offense and that these incentives lessened the seriousness of his offense, the district

court needed to address the argument before imposing an above-Guidelines sentence.

      Contrary to Mr. Chavez-Morales’s argument, however, the transcript of the

sentencing hearing shows that the district court responded to the argument on three

separate occasions. Although the district court acknowledged that wages in the

United States were higher than wages in Mexico, it discounted the logic and veracity

of Mr. Chavez-Morales’s argument on the ground that Mr. Chavez-Morales had

earned less money during the seven-plus years he had spent in a United States prison

then he would have had he worked in Mexico. The district court also rejected the

mitigating value of Mr. Chavez-Morales’s economic argument based on the limited

                                           13
amount of time between his most recent deportation and his present offense, noting

that Mr. Chavez-Morales “didn’t really try to make a go of it [in Mexico].”5 ROA

Vol. 3 at 26. Accordingly, the district court did not commit procedural error because

it satisfied its procedural duty to consider Mr. Chavez-Morales’s economic

motivation argument and provided reasons for rejecting the argument before

imposing an above-Guidelines sentence.6

                       B.     Imposition of Supervised Release

      Mr. Chavez-Morales argues that the district court committed procedural error

by imposing a term of supervised release without considering U.S.S.G. § 5D1.1(c).

Mr. Chavez-Morales, however, concedes that because he did not object to the

imposition of a term of supervised release, his argument is subject to plain error

review. As noted earlier, under plain error review, the defendant must establish that “(1)

      5
         Mr. Chavez-Morales also suggests that the district court erred by relying on a
need to promote respect for the law, see 18 U.S.C. § 3553(a)(2)(A), when selecting
Mr. Chavez-Morales’s sentence after it conceded that a “subjective” disrespect for
the law did not motivate Mr. Chavez-Morales to commit his most recent offense, see
ROA Vol. 3 at 29. We read the district court’s comments more narrowly than does
Mr. Chavez-Morales. It may be the case that a disrespect for the law was not the
prevailing reason behind Mr. Chavez-Morales’s decision to illegally reenter the
United States. But, as the district court noted, it is not hard to conclude that an
individual has objectively disrespected the laws of the United States by incurring five
independent convictions for the same general offense. Separately, nothing in the
language of § 3553(a)(2)(A) requires the district court to find a subjective disrespect
for the law before relying on the factor when determining what sentence is sufficient,
but not greater than necessary, to satisfy the § 3553(a) factors. Instead, a district
court may rely on § 3553(a)(2)(A) to select a sentence that promotes a general,
societal respect for the law.
      6
       Because Mr. Chavez-Morales has not demonstrated that the district court
committed procedural error, his challenge to his sentence would also fail under the
more favorable abuse of discretion standard of review for which he advocated.
                                           14
the district court committed error; (2) the error was plain—that is, it was obvious under

current well-settled law; (3) the error affected the Defendant’s substantial rights; and (4)

the error seriously affected the fairness, integrity, or public reputation of judicial

proceedings.” 

(internal quotation marks omitted).7 We

commence our plain error analysis by discussing the procedural steps in which the district

court needed to engage before imposing supervised release on Mr. Chavez-Morales given

that he was likely to be deported upon completing his term of imprisonment.

       Where Mr. Chavez-Morales’s present illegal reentry conviction occurred after a

conviction for an aggravated felony, his conviction carried a maximum sentence of

twenty years’ imprisonment and qualified as a Class C felony. See 8 U.S.C. § 1326(b)(2),

18 U.S.C. § 3559(a)(3). Section 3583 of Title 18 authorizes a term of supervised release

of “not more than three years” for a Class C felony. 18 U.S.C. § 3583(b)(2) (emphasis

added). Accordingly, the district court was not statutorily required to impose a term of

supervised release on Mr. Chavez-Morales.

       Section 5D1.1 of the United States Sentencing Guidelines advises that “[t]he court

ordinarily should not impose a term of supervised release in a case in which supervised


       7
         The Supreme Court’s recent decision in Rosales-Mireles v. United States
alters the threshold for satisfying the fourth prong of the plain error analysis relative
to an “ordinary case” involving “a plain Guidelines error that affects a defendant’s
substantial rights.” ___ S. Ct. ___, 

, at *12 (June 18, 2018). But,
Rosales-Mireles arose within the context of an error in calculating the defendant’s
Guidelines range. See 

Because Mr. Chavez-Morales fails to satisfy the third
prong of the plain error analysis, we need not decide whether the district court’s
failure to tie its comments about deterrence to its imposition of a term of supervised
release qualifies as a Guidelines error or whether Rosales-Mireles applies to
Guidelines errors that do not involve the calculation of a Guidelines range.
                                              15
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) (emphasis added). Commentary to

U.S.S.G. § 5D1.1 provides the rationale for ordinarily not imposing supervised release on

a defendant who is a deportable alien:

       Unless such a defendant legally returns to the United States, supervised
       release is unnecessary. If such a defendant illegally returns to the United
       States, the need to afford adequate deterrence and protect the public
       ordinarily is adequately served by a new prosecution. The court should,
       however, 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.

U.S.S.G. § 5D1.1 n.5 (emphasis added).

       In imposing a term of supervised release, the district court did not acknowledge or

consider the guidance in U.S.S.G. § 5D1.1(c) and the accompanying commentary. Nor

did the district court specifically link its imposition of supervised release to a need for

deterrence or protection. And while the district court did focus on the need for specific

deterrence when selecting Mr. Chavez-Morales’s term of imprisonment, Tenth Circuit

precedent prevents us from imparting the district court’s reasons under the § 3553(a)

factors for selecting a term of imprisonment onto its decision to impose a term of

supervised release. See United States v. Zanghi, 

, 1205 (10th Cir. 2000) (“It

is not appropriate simply to assume that the sentencing court’s reason for imposing a

prison term likewise extends to its decisions regarding supervised release . . . nor is it

consistent with our appellate function to do so.”). Instead, the district court should have

recognized the advice in U.S.S.G. § 5D1.1(c) regarding ordinarily not imposing


                                              16
supervised release and then explicitly tied its imposition of supervised release to the

added deterrent effect of doing so in Mr. Chavez-Morales’s case, the need to protect the

public, and any of the other relevant 18 U.S.C. § 3583(c) factors governing supervised

release. By not engaging in these procedural steps, the district court committed error. See

United States v. Solano-Rosales, 

, 353–54 (6th Cir. 2015) (concluding that

district court commits error by imposing term of supervised release on deportable alien

without acknowledging U.S.S.G. § 5D1.1(c) and without providing “reasoning for taking

a different course of action” than recommended by § 5D1.1(c)); see also United States v.

Azcona-Polanco, 

, 153 (3d Cir. 2017) (suggesting that district court must

acknowledge U.S.S.G. § 5D1.1(c) and “must ‘explain and justify’ the imposition of

supervised release on a deportable immigrant” (quoting United States v. Murray, 

, 281 (3d Cir. 2012))).

       Although the district court committed error, we conclude that Mr. Chavez-Morales

failed to sustain his burden on the third prong of the plain error analysis.8 Under the third

prong, Mr. Chavez-Morales must establish that there is “a ‘reasonable probability’ that

the defects in his sentencing altered the result of the proceedings.” United States v.

Dazey, 

, 1175 (10th Cir. 2005) (quoting United States v. Dominguez

Benitez, 

, 81–82 (2004)). Mr. Chavez-Morales argues that because U.S.S.G.


       8
        Because Mr. Chavez-Morales fails to sustain his burden on the third prong of
the plain error analysis, we need not address the second prong—whether the district
court’s error was plain. See United States v. Gonzalez-Huerta, 

, 736
(10th Cir. 2005) (finding it unnecessary to analyze third prong of plain error analysis
where appellant did not satisfy fourth prong).

                                             17
§ 5D1.1(c) indicates that supervised release is “ordinarily” not appropriate, it follows that

there is a reasonable probability that the district court would not have imposed a term of

supervised release had it acknowledged and considered § 5D1.1(c). Mr. Chavez-

Morales’s argument, however, does not account for the specific facts of his case.

       From the time of considering the fast-track plea agreement through the sentencing

hearing, the district court repeatedly expressed concerns about Mr. Chavez-Morales’s

history of illegal reentry offenses, as well as the need to deter Mr. Chavez-Morales so

that he did not illegally reenter the United States a sixth time.9 And while the district

court did not adequately tie its imposition of a term of supervised release to deterrence

for purposes of our error analysis, threads of a deterrence rationale appear in the




       9
         Although United States v. Zanghi prohibits us from ascribing the district
court’s reasons for selecting a term of imprisonment to its decision to impose a term
of supervised release when determining if the district court adequately explained its
decision to impose supervised release, Zanghi involved a preserved challenge to a
term of supervised release that we reviewed under an abuse of discretion standard.

, 1203 (10th Cir. 2000). Accordingly, nothing in Zanghi prohibits us
from considering the proceedings as a whole when determining whether Mr. Chavez-
Morales established a reasonable probability of a different result absent the error.
And, other circuits that follow the reasoning of Zanghi have considered the
proceedings as a whole, including the district court’s explanation for its sentence,
when evaluating the third prong of the plain error analysis relative to a challenge to
the imposition of supervised release in light of U.S.S.G. § 5D1.1(c). See United
States v. Azcona-Polanco, 

, 153–54 (3d Cir. 2017) (noting that “[t]he
requirement that a district court provide an adequate explanation applies to
supervised release” but considering proceedings as a whole, including defendant’s
history and characteristics, when evaluating third prong of plain error analysis);
United States v. Solano-Rosales, 

, 352, 354–55 (6th Cir. 2015)
(acknowledging requirement that district court provide reasons specific to imposition
of supervised release but considering all of district court’s comments when
evaluating third prong of plain error analysis).
                                             18
statement made by the district court contemporaneous to its decision to impose

supervised release:

       The term is unsupervised with mandatory and standard conditions, and the
       following special condition. The Defendant shall not illegally re-enter the
       United States. And I hope this time around the Defendant will listen to what
       I’m telling him, and listen to what his lawyer told him. You will never, ever
       be authorized to come to the United States legally. So unless you want to
       essentially spend the rest of your life sitting in a U.S. prison cell, I strongly
       recommend that after you serve this sentence and you’re deported, you
       never return to the United States.

ROA Vol. 3 at 30. Finally, at a hearing prior to sentencing, Mr. Chavez-Morales’s own

counsel suggested that the district court could impose a term of supervised release as an

added means of deterrence because the term of supervised release would permit the

district court to impose a revocation sentence should Mr. Chavez-Morales illegally return

to the United States during the term of supervised release.

       Considering the proceedings as a whole, we conclude that (1) the need for

deterrence was particularly high in Mr. Chavez-Morales’s case given his numerous illegal

reentry convictions; (2) both the district court and Mr. Chavez-Morales’s own counsel

recognized the need for specific deterrence; and (3) the imposition of a term of

supervised release was likely to have a strong deterrent effect on Mr. Chavez-Morales

given the district court’s imposition of an above-Guidelines sentence and its suggestion to

Mr. Chavez-Morales that, if he returned, the same district court judge would impose a

lengthy revocation sentence. On these specific facts, Mr. Chavez-Morales has not

demonstrated a reasonable probability that if we were to remand for resentencing, the




                                              19
district court would decline to reimpose the same term of supervised release.10 See

–55 (no effect on substantial rights where district

court cited defendant’s serious criminal history, failure to comply with order of

removal, prior illegal reentry conviction, and purchase of false documents in effort to

remain in United States); see also United States v. Alvarado, 

, 160 (2d

Cir. 2013) (relying on defendant’s criminal history to conclude that, if district court

did not adequately explain reasons for imposing supervised release on deportable

alien defendant, any error did not affect substantial rights); United States v. Cancino-

Trinidad, 

, 606–07 (5th Cir. 2013) (concluding that, in light of

defendant’s criminal record, defendant showed only a “possibility,” not a

“probability,” of different result at resentencing such that the error did not affect

substantial rights).11



       10
          Mr. Chavez-Morales points to United States v. Dieudonne, 695 F. App’x 657
(3d Cir. 2017), in support of his argument that there is a reasonable probability that
the district court would not have imposed a term of supervised release had it
acknowledged and considered U.S.S.G. § 5D1.1(c). Apart from the fact that
Dieudonne is an unpublished, out of circuit decision, the government in Dieudonne
conceded the third prong of the plain error analysis, Dieudonne, 695 F. App’x at 661.
Furthermore, the defendant in Dieudonne, while subject to deportation, was
convicted of wire fraud offenses rather than an immigration offense and nothing in
the Third Circuit’s opinion suggests that the defendant was in the United States
illegally, had ever illegally reentered the country after deportation, or had even
sustained a prior felony conviction. See 

Accordingly, Dieudonne has little
persuasive value when considered in light of Mr. Chavez-Morales’s history and
characteristics.
       11
         Where Mr. Chavez-Morales fails to satisfy the third prong of the plain error
test, we need not evaluate his arguments under the fourth prong of that analysis. See
United States v. Gantt, 

, 1246 (10th Cir. 2012).
                                            20
                               III.   CONCLUSION

      We AFFIRM the district court’s judgment with respect to both Mr. Chavez-

Morales’s term of imprisonment and term of supervised release.




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