Filed: Jan. 19, 2016
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4227 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAIRO MENDEZ GARCIA, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:14-cr-00155-RAJ-1) Submitted: December 14, 2015 Decided: January 19, 2016 Before KING and FLOYD, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Ger
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4227 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAIRO MENDEZ GARCIA, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:14-cr-00155-RAJ-1) Submitted: December 14, 2015 Decided: January 19, 2016 Before KING and FLOYD, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Gere..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4227
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAIRO MENDEZ GARCIA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:14-cr-00155-RAJ-1)
Submitted: December 14, 2015 Decided: January 19, 2016
Before KING and FLOYD, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Geremy C. Kamens, Acting Federal Public Defender, Patrick L.
Bryant, Appellate Attorney, Keith Loren Kimball, Assistant
Federal Public Defender, Alexandria, Virginia, for Appellant.
Melissa Elaine O’Boyle, Assistant United States Attorney,
Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jairo Mendez Garcia pled guilty, without a plea agreement,
to illegal reentry of a removed felon, in violation of 8 U.S.C.
§ 1326(a), (b)(1) (2012). The district court sentenced him to
36 months’ imprisonment, a downward variance from the 41- to 51-
month Sentencing Guidelines range, and imposed a 3-year term of
supervised release. On appeal, counsel has filed a brief
pursuant to Anders v. California,
386 U.S. 738 (1967), stating
that there are no meritorious grounds for appeal, but
questioning the validity of Mendez Garcia’s guilty plea and the
reasonableness of the imposition of a term of supervised
release. Although notified of his right to do so, Mendez Garcia
did not file a pro se supplemental brief. Finding no reversible
error, we affirm.
Counsel for Mendez Garcia questions whether omissions at
the Fed. R. Crim. P. 11 hearing rendered the guilty plea
invalid. Because Mendez Garcia did not assert in the district
court any error in the plea proceedings or move to withdraw his
guilty plea, we review the adequacy of his plea colloquy for
plain error. United States v. Massenburg,
564 F.3d 337, 342
(4th Cir. 2009). To establish plain error, Mendez Garcia must
demonstrate that the district court erred, the error was plain,
and it affected his substantial rights. Henderson v. United
States, 133 S. Ct. 1121, 1126 (2013). In the guilty plea
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context, an error affects a defendant’s substantial rights if he
demonstrates a reasonable probability that he would not have
pled guilty but for the error.
Massenburg, 564 F.3d at 343.
Even if these requirements are met, we will “correct the error
only if it seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v.
Nicholson,
676 F.3d 376, 381 (4th Cir. 2012) (internal quotation
marks omitted).
Our review of the record reveals that the district court
substantially complied with the mandates of Rule 11 and that
Mendez Garcia’s substantial rights were unaffected by any
omissions. We conclude that Mendez Garcia’s guilty plea was
knowing and voluntary.
Counsel for Mendez Garcia contends that the district court
erred in imposing a term of supervised release because Mendez
Garcia is a deportable alien. Under U.S. Sentencing Guidelines
Manual § 5D1.1(c) (2014), a district 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.”
Id. However, the Advisory Notes clarify that
the district court should “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
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based on the facts and circumstances of a particular case.”
USSG § 5D1.1 cmt. n.5. Here, the district court and the parties
recognized that Mendez Garcia would be deported, and the
presentence report had expressly referenced USSG § 5D1.1(c), but
no objection was made to the imposition of a term of supervised
release. We therefore review for plain error Mendez Garcia’s
challenge to the imposition of a supervised release term.
United States v. Aplicano-Oyuela,
792 F.3d 416, 422 (4th Cir.
2015).
The imposition of a term of supervised release on a
deportable alien is reasonable if the “sentencing court (1) is
aware of Guidelines section 5D1.1(c); (2) considers a
defendant’s specific circumstances and the [18 U.S.C.] § 3553(a)
[(2012)] factors; and (3) determines that additional deterrence
is needed.”
Aplicano-Oyuela, 792 F.3d at 424 (citing United
States v. Alvarado,
720 F.3d 153, 159 (2d Cir. 2013)). We have
reviewed the record with these standards in mind and find that
the district court did not plainly err in imposing a term of
supervised release on this defendant.
In accordance with Anders, we have reviewed the entire
record for any meritorious grounds for appeal and have found
none. Accordingly, we affirm the district court’s judgment.
This court requires that counsel inform Mendez Garcia, in
writing, of his right to petition the Supreme Court of the
4
United States for further review. If Mendez Garcia requests
that a petition be filed, but counsel believes that such a
petition would be frivolous, counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on his client. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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