Case: 12-40149       Document: 00512151595         Page: 1     Date Filed: 02/21/2013




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

                                                                            FILED
                                                                         February 21, 2013
                                     No. 12-40149
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DELFINO MARTINEZ-HERNANDEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:11-CR-990-1


Before SMITH, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Delfino Martinez-Hernandez (Martinez) appeals the sentence imposed
following his guilty plea conviction for illegal reentry in violation of 8 U.S.C.
§ 1326(a), (b)(1). He argues for the first time on appeal that his supervised
release term was procedurally unreasonable (1) because the district court did not
explain why it imposed the term despite the statement in United States
Sentencing Guideline § 5D1.1(c), which indicates that supervised release should
not ordinarily be imposed when the defendant is a deportable alien, and

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-40149     Document: 00512151595     Page: 2   Date Filed: 02/21/2013

                                  No. 12-40149

(2) because the district court gave no notice of its intent to depart from
§ 5D1.1(c). In addition, Martinez argues that his sentence is not entitled to a
presumption of reasonableness on appellate review and that his sentence is
substantively unreasonable because the district court failed to take § 5D1.1(c)
into account.
      The district court did not plainly err in imposing a term of supervised
release. See United States v. Dominguez-Alvarado, 

, 327-30 (5th
Cir. 2012). In making its sentencing determination, the district court adopted
the presentence report, which summarized § 5D1.1(c) and listed Martinez’s
extensive criminal history and numerous deportations. See United States v.
Ollison, 

, 164 (5th Cir. 2009). The court considered the Sentencing
Guidelines, the factors set forth in 18 U.S.C. § 3553(a), the Government’s
argument in favor of a sentence at the top of the advisory sentencing guidelines
range, and Martinez’s argument in favor of a sentence at the low end of the
range. After these considerations, the court implicitly rejected Martinez’s
request, found that a guidelines sentence was appropriate and not greater than
necessary, and imposed a prison term at the top of the guidelines range and a
supervised release term. The court’s explanation of its sentencing decision was
sufficient. See United States v. Rodriguez, 

, 525-26 (5th Cir. 2008);
United States v. Mares, 

, 519 (5th Cir. 2005).          Because the
supervised release term was within the statutory and guidelines ranges for the
offense of conviction, it was not a departure; therefore, no notice was required.
See Dominguez-Alvarado, 695 F. 3d at 329.
      As for substantive reasonableness, Martinez’s supervised release term was
a guidelines sentence notwithstanding § 5D1.1(c), see id., and thus is entitled to
a rebuttable presumption of reasonableness on appellate review. See United
States v. Cooks, 

, 186 (5th Cir. 2009). Although Martinez argues
that his sentence is unreasonable because the district court failed to take
§ 5D1.1(c) into account, the court was aware of this provision because it was

                                        2
    Case: 12-40149    Document: 00512151595    Page: 3   Date Filed: 02/21/2013

                                No. 12-40149

discussed in the presentence report, which the court adopted without objection
from Martinez. Moreover, because the district court exercised its discretion to
order a guidelines sentence, see Dominguez-Alvarado, 695 F.3d at 329, we infer
that the court considered all the factors for a fair sentence set forth in the
Sentencing Guidelines. Mares, 402 F.3d at 519. In view of the foregoing,
Martinez fails to overcome the presumption that his sentence is reasonable. See
Cooks, 589 F.3d at 186.
      The judgment of the district court is AFFIRMED.




                                      3