United States v. Arturo Cancino-Trinidad

710 F.3d 601, 2013 WL 869047, 2013 U.S. App. LEXIS 4802
CourtCourt of Appeals for the Fifth Circuit
DecidedMarch 8, 2013
Docket11-41344
StatusPublished
Cited by67 cases

This text of 710 F.3d 601 (United States v. Arturo Cancino-Trinidad) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Arturo Cancino-Trinidad, 710 F.3d 601, 2013 WL 869047, 2013 U.S. App. LEXIS 4802 (5th Cir. 2013).

Opinion

*604 JERRY E. SMITH, Circuit Judge:

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.

I.

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.” 1

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. Caneino-Trini-dad timely appeals his sentence based on the imposition of SR.

II.

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

ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including *605 an explanation for any deviation from the Guidelines range.

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. 2

Plain error review requires four determinations: whether there was error at all; whether it was plain or obvious; whether the error affected the defendant’s substantial rights; and whether this court should exercise its discretion to correct the error in order to prevent a manifest miscarriage of justice. United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Infante, 404 F.3d 376, 394 (5th Cir.2005). This court retains discretion to correct reversible plain error and will do so “only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Puckett [ ], 556 U.S. [at 135] 129 S.Ct. 1423.

Dominguez-Alvarado, 695 F.3d at 328.

III.

Even when reviewing sentences for plain error, we generally conduct a bifurcated analysis. 3 But, because it bears on both procedural and substantive unreasonableness, we first consider Cancino-Trinidad’s contention that the imposition of three years’ SR constitutes an upward departure under § 5D1.1(c). This argument is foreclosed by circuit precedent. 4

[I]n order to avoid rendering the word “ordinarily” superfluous, we interpret the Guidelines use of the word “ordinarily” in § 5D1.1 and the accompanying commentary as advising a sentencing court that for most deportable aliens, imposing [SR] is unnecessary because the deterrent and protective effect of [SR] is adequately served by the possibility of a new future prosecution for illegal reentry, while still leaving within the discretion of the sentencing court the option of imposing [SR] in uncommon cases where added deterrence and protection are needed. The word “ordinarily” is hortatory, not mandatory, in this provision. As to any defendant specified in subsection (c), the statutory [SR] range is zero to three years, 18 U.S.C. § 3583(b)(2), and the amended Guidelines range ... is one to three years, should a sentencing court elect to impose a term of [SR]. Here, the district court imposed three years. No departure analysis is triggered....

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.

*606 A.

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).

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Bluebook (online)
710 F.3d 601, 2013 WL 869047, 2013 U.S. App. LEXIS 4802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-arturo-cancino-trinidad-ca5-2013.