Arturo Cancino-Trinidad pleaded guilty to illegal re-entry. On appeal, he asserts that the imposition of a three-year term of supervised release ("SR") was procedurally and substantively unreasonable. We affirm.
Cancino-Trinidad, an illegal alien, has been arrested in the United States about four dozen times since 1986. According to the presentence investigation report ("PSR"), his criminal record includes twenty-eight convictions and four outstanding warrants, including a 1992 conviction of the aggravated felony of uttering a forged instrument. He was deported in February or March 2011 and was re-arrested in Brownsville, Texas, less than three months later.
Cancino-Trinidad pleaded guilty, without a plea agreement, to having been found unlawfully present in the United States after removal following an aggravated felony conviction, in violation of 8 U.S.C. § 1326. The district court sentenced him to thirty-two months' imprisonment, three years' SR, and a $100 special assessment, which was remitted on motion of the government.
Sentencing occurred on December 6, 2011. The PSR, adopted by the district court "without change," had last been revised on October 12, 2011, and provided, in part, that "[t]he guideline range for a term of [SR] is at least two (2) years but not more than three (3) years.... [SR] is required if the Court imposes a term of imprisonment of more than one (1) year." Effective November 1, 2011 — more than a month before the sentencing — U.S.S.G. § 5D1.1 was amended to add subsection (c): "The court ordinarily should not impose a term of [SR] in a case in which [SR] is not required by statute and the defendant is a deportable alien who likely will be deported after imprisonment."
At sentencing, the government stated that "the new range of [SR] release is one to three years." The PSR, however, was not modified to reflect the new range, and neither the district court nor the government evinced an awareness that the amended guideline rendered the imposition of SR discretionary. Cancino-Trinidad timely appeals his sentence based on the imposition of SR.
We generally review sentences for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.2008). First, we
Gall, 552 U.S. at 51, 128 S.Ct. 586; United States v. Dominguez-Alvarado, 695 F.3d 324, 327 (5th Cir.2012). If the sentencing decision is "procedurally sound," we "then consider the substantive reasonableness of the sentence...." Gall, 552 U.S. at 51, 128 S.Ct. 586; Dominguez-Alvarado, 695 F.3d at 327. As Cancino-Trinidad concedes, however, our review is limited to plain error, because he did not challenge the procedural or substantive reasonableness of SR in the district court.
Dominguez-Alvarado, 695 F.3d at 328.
Even when reviewing sentences for plain error, we generally conduct a bifurcated analysis.
Dominguez-Alvarado, 695 F.3d at 329 (footnote omitted).
As the government noted at Cancino-Trinidad's sentencing, the range for SR under the amended guideline was one to three years. The imposition of a term within that range was not a departure, and we analyze the reasonableness of the sentence with that in mind.
With respect to procedural unreasonableness, "[t]he district court must adequately explain the sentence `to allow for meaningful appellate review and to promote the perception of fair sentencing.'" United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir.2009) (quoting Gall, 552 U.S. at 50, 128 S.Ct. 586). "When the judge exercises her discretion to impose a sentence within the Guideline range and states for the record that she is doing so, little explanation is required." United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005). When § 5D1.1(c) applies, SR "should not be imposed absent a determination that [SR] would provide an added measure of deterrence and protection based on the facts and circumstances of a particular case." Dominguez-Alvarado, 695 F.3d at 329.
When evaluating procedural reasonableness, "[w]e infer that the district court considered all pertinent sentencing considerations in imposing the sentence."
"An error that is plain, though, is not enough." Blocker, 612 F.3d at 416. Cancino-Trinidad may prevail on plain-error review only if the mistake "affected [his] substantial rights, ... `affected the outcome of the district court proceedings.'"
Cancino-Trinidad asserts that "there is at least a reasonable probability that, upon reconsideration, the district court would decline to impose a [SR] term" because, among other things, "the imposition of a term of [SR] ... simply resulted from the district court's overlooking the recent change in the Guidelines recommending no [SR] for persons like [] Cancino-Trinidad." Our opinion in Lara-Espinoza, 488 Fed.Appx. at 834-35, though unpublished, provides persuasive authority that the court's unfamiliarity with the amended guidelines is not dispositive: We concluded that a similar error
Id. (quoting § 5D1.1, cmt. (n. 5)).
At sentencing, the court told Cancino-Trinidad that "I'm trying to keep you from coming back here because I know what's going to happen if you do...." The court noted that the imposition of SR would result in greater criminal penalties should Cancino-Trinidad illegally re-enter the United States after completing his prison sentence. Though less explicit than the statement at issue in Lara-Espinoza, the court's comments indicate implicit consideration of the deterrent effect of SR.
Even assuming that the district court did not previously conduct the factual consideration described in § 5D1.1, cmt. (n. 5), Cancino-Trinidad's criminal record supports a finding that the imposition of SR "would provide an added measure of deterrence and protection based on the facts and circumstances of [this] particular case." Because Cancino-Trinidad has "raise[d] a `possibility' of a different result, but not the requisite `probability,'"
We next consider Cancino-Trinidad's claim of substantive unreasonableness. "One basis for error in a defendant's sentence is failure by the district court to account for a factor that should receive significant weight." Martinez-Berrios, ___ Fed.Appx. at ___, 2012 WL 6634605, at *1 (citing United States v. Cooks, 589 F.3d 173, 186 (5th Cir.2009)). Cancino-Trinidad contends that the court did not even consider, much less "account for" or give "significant weight" to, the advice in § 5D1.1(c) that deportable aliens should "ordinarily" not be sentenced to terms of SR. The court, however, imposed a term of SR that was within the applicable guideline range of one to three years. We "ordinarily appl[y] a presumption of reasonableness to within-guidelines sentences."
The judgment of sentence is AFFIRMED.
U.S.S.G. § 5D1.1, cmt. (n. 5).