NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                  ______________

                        No. 11-3743
                      ______________

             UNITED STATES OF AMERICA

                             v.

             JORGE OMAR LOPEZ-ALFARO
                     also known as
                 JORGE OMAR LOPEZ
                     also known as
                   JORGE AGUILAR
                     also known as
                 GEORGE CARCAMO

                                  Jorge Omar Lopez-Alfaro,

                                                     Appellant
                      ______________

       On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
             (D.C. Crim. No. 2-09-00735-001)
         Honorable Juan R. Sanchez, District Judge
                     ______________

         Submitted under Third Circuit LAR 34.1(a)
                     October 2, 2012

BEFORE: FUENTES, FISHER and GREENBERG, Circuit Judges

                  (Filed: October 3, 2012)
                      ______________

                OPINION OF THE COURT
                    ______________
GREENBERG, Circuit Judge.

       This matter comes on before this Court on an unusually narrow appeal by

appellant Jorge Omar Lopez-Alfaro from a judgment of conviction and sentence dated

September 26, 2011, entered pursuant to his plea of guilty in this criminal case. The

District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       The background of the case is as follows. Lopez-Alfaro, a native of Mexico who

was in this country illegally, pled guilty in a state court in Florida to a charge of

attempted first degree murder. The Florida court sentenced him to a six-year custodial

term, but apparently because the court anticipated that he would be removed from the

country after he was released it did not impose any type of supervisory term to follow

Lopez’s release following his service of his custodial term. In fact, he was removed from

this country on or about August 11, 2005, following the completion of his custodial term.

       Subsequently, Lopez-Alfaro reentered this country illegally and the Philadelphia

police arrested him for various state offenses. The state court, however, released him

pending the state court proceedings but federal immigration agents then arrested him

because of his illegal status in this country. This federal arrest led to his indictment in the

District Court for unlawful reentry contrary to 8 U.S.C. §§ 1326(a) and (b)(2). He

pleaded guilty to this offense and the Court sentenced him within the statutory and

guideline ranges to a 47-month custodial term to be followed by a three-year term of

supervised release. The state court charges have been dismissed.



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       Lopez-Alfaro appeals, contending only that his term of supervised release was

unlawful because the District Court imposed it as a punishment for his offense of

unlawfully reentering the country even though a term of supervised release cannot be

imposed as a punishment. He acknowledges, however, that even though the Court

explained why it was imposing the term of supervised release, he did not object to the

imposition of the term in that Court. Consequently, we review the sentence for plain

error, see United States v. Maurer, 

, 77 (3d Cir. 2011), but that review

encompasses an exercise of plenary review to the extent that Lopez-Alfaro contends that

the Court erred as a matter of law in imposing the term of supervised release. See United

States v. Wise, 

, 217 (3d Cir. 2008).

       Lopez-Alfaro correctly sets forth the law underlying the reasons for the imposition

of a term of supervised release but the problem with his appeal is that the District Court

imposed the sentence of supervised release for appropriate statutory reasons. Therefore,

the Court did not plainly err, or err at all, in imposing the term.

       As the government points out, 18 U.S.C. § 3553(a) sets forth the factors that a

district court should consider in imposing a sentence. 18 U.S.C. § 3583(c), in turn,

incorporates the factors for a court to consider in determining whether to impose a term

of supervised release. Among the sentencing factors incorporated by section 3583(c) for

a court to consider in determining whether to impose a term of supervised release is the

need “to afford adequate deterrence to criminal conduct.” 18 U.S.C. § 3553(a)(2)(B).

But the factor of “punishment” as a basis for determining the length of a sentence set

forth in 18 U.S.C. § 3553(a)(2)(A) is not incorporated as a factor for a court to take into

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account when determining whether to impose a term of supervised release.

Consequently, as the Supreme Court set forth in Tapia v. United States, 

,

2388 (2011), “a court may not take account of retribution . . . when imposing a term of

supervised release” (emphasis in original).

       In view of the clear law we must ascertain why the District Court imposed the

term of supervised release. Our task is hardly difficult. The District Court was aware

that because the Florida court in sentencing Lopez-Alfaro did not impose any type of

supervision on him to follow his release from custody it was not possible to use a

summary procedure for punishment when he illegally returned to this country. The Court

quite reasonably recognized that Lopez-Alfaro again might return to the country illegally

after being removed and it sought to ensure that he could be punished for so reentering if

he did so without the initiation of a new plenary criminal proceeding. It therefore

indicated that it was imposing a term of supervised release on his federal conviction for

unlawful reentry because “[b]ased on the experience we had before with him, that he

reentered the United States, I think it’s wise to impose some kind of supervision . . . . So

I do believe that despite the defendant’s impending deportation, that I should impose a

maximum term of supervised release, so that if he comes back into the United States

without authorization, he can be found in violation of supervised release.” App. at 187-

88.

       Of course, once Lopez is removed from this country the term of supervised release

will have no meaning as far as he is concerned unless he returns to this country illegally.

It accordingly follows that the District Court imposed the sentence strictly for reasons of

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deterrence rather than as a punishment and therefore it was perfectly appropriate to

provide for supervised release to follow his release from custody even if he was to be

removed after service of his custodial term.

       Finally we note that we are aware that the Sentencing Commission has indicated

that while ordinarily a court should not impose a term of supervised release on a

defendant expected to be removed from the country because if he illegally returns the

need for adequate deterrence and protection of the public can be served by a new

prosecution for unlawful reentry. But the commission also has indicated that “[t]he 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 app. note 5.

The Court when it imposed the term of supervised release acted in exact conformity with

this note.

       The judgment of conviction and sentence of September 26, 2011, will be affirmed.




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