United States v. Gerson Aplicano-Oyuela

792 F.3d 416, 2015 U.S. App. LEXIS 11649, 2015 WL 4081258
CourtCourt of Appeals for the Fourth Circuit
DecidedJuly 7, 2015
Docket14-4244
StatusPublished
Cited by103 cases

This text of 792 F.3d 416 (United States v. Gerson Aplicano-Oyuela) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth 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. Gerson Aplicano-Oyuela, 792 F.3d 416, 2015 U.S. App. LEXIS 11649, 2015 WL 4081258 (4th Cir. 2015).

Opinion

Affirmed by published opinion. Judge KING wrote the opinion, in which Judge NIEMEYER and Judge HARRIS joined.

KING, Circuit Judge:

Gerson Arturo Aplicano-Oyuela (“Apli-cano”), a native and citizen of Honduras, pleaded guilty in the District of Maryland to an illegal reentry offense that occurred after his removal from this country following a felony conviction. See 8 U.S.C. § 1326(a), (b)(1). On March 13, 2014, the district court sentenced Aplicano to sixteen months in prison and three years of supervised release. On appeal, Aplicano challenges solely his term of supervised release, contending that it was procedurally and substantively unreasonable, and that the court failed to properly advise him with respect to supervised release before accepting his guilty plea. As explained below, we affirm.

h-C

P>

In 2002, at the age of nineteen, Aplicano illegally entered the United States from Honduras. • In August 2006, Aplicano pleaded guilty to second-degree assault in Maryland using the name “Hershen Artu *419 ro Oulala.” Two years later, he pleaded guilty in Maryland to driving without a license, this time using the alias “Gerson E. Aplicano.” In 2011, Aplicano was convicted of criminal mischief in Ohio under the name “Jefferson Ordonez.” That November, Aplicano was released from state confinement into the custody of the Department of Homeland Security’s Immigration and Customs Enforcement (“ICE”). In late 2011, Aplicano was removed to Honduras.

Almost immediately after his removal, Aplicano unlawfully reentered the United States. He was apprehended by border patrol agents in McAllen, Texas, however, and removed to Honduras in January 2012. Sometime between January 2012 and March 2013, Aplicano again entered the United States without authorization. In March and May 2013, he was arrested for separate offenses in Maryland — on both occasions using the alias “Frankin J. Mar-adiaga-Ortiz.” Although those charges were later dismissed, Aplicano’s brushes with law enforcement continued. In late May 2013, he was arrested for another second-degree assault in Maryland. Following Aplieano’s guilty plea on the assault charge in July of that year — under the fictitious name “Jose Roberto Ordonez”— ICE again took custody of Aplicano and obtained his fingerprints. ICE determined Aplicano’s true identity by comparing those fingerprints to fingerprint records in its database.

B.

By its indictment of August 26, 2013, the federal grand jury in Maryland charged Aplicano with illegal reentry by an alien who had previously been removed after a felony conviction, in contravention of 8 U.S.C. § 1326(a) and (b)(1). Aplicano initially pleaded not guilty to the indictment. On November 22, 2013, however, Aplicano submitted a letter (the “plea letter”) through his attorney to the district court, explaining that (1) he “knowingly and voluntarily agreed to plead guilty” to the single charge in the pending indictment “without the benefit of a plea agreement”; and (2) the plea letter would “assist the Court in the Rule 11 colloquy.” J.A. 9. 1 Aplicano acknowledged that the “maximum sentence” for the illegal reentry offense includes “a period of supervised release of three (3) years.” Id. at 10. According to the plea letter, Aplicano also understood that

if he serves a term of imprisonment, is released on supervised release, and then violates the conditions of his supervised release, his supervised release could be revoked — even on the last day of the term — and [he] could be returned to custody to serve another period of incarceration and a new term of supervised release.

Id. Aplicano signed and dated the plea letter, acknowledging therein that “I have carefully discussed this letter with my attorney. I understand it, and I voluntarily agree to it.” Id. at 13.

The district court conducted Aplicano’s plea hearing on December 11, 2013. Consistent with the plea letter, Aplicano pleaded guilty to the illegal reentry charge in the indictment. Accepting Aplicano’s guilty plea, the court observed that there was no plea agreement. The court acknowledged receipt of the plea letter, however, and confirmed that Aplicano had reviewed it with an interpreter. It advised Aplicano that, by pleading guilty, he would be subject to the “maximum possible penalty” for his offense, including “supervised *420 release for a period of three years.” J.A. 23. Aplicano indicated that he understood, and his attorney agreed that the court could impose a sentence “within its discretion.” Id. at 26.

On February 4, 2014, the probation officer presented Aplicano’s presentence report (the “PSR”) to the district court. According to the PSR, Aplicano’s base offense level for the illegal reentry offense was level 8, pursuant to the Sentencing Guidelines, but it was increased by four levels as a result of his 2006 felony assault conviction in Maryland. See U.S.S.G. § 2L1.2(b)(l)(D) (2012). Aplicano’s offense level was then reduced by two levels for acceptance of responsibility, resulting in a total offense level of 10. The PSR identified the applicable Guidelines range as ten to sixteen months, and recommended a within-Guidelines sentence of thirteen months. The PSR also indicated that the court was entitled to impose a term of supervised release, in accordance with the following provisions:

Statutory Provisions: If a term of imprisonment is imposed, the Court may impose a term of supervised release of not more than three years, pursuant to 18 U.S.C. § 3583(b)(2).
Guidelines Provisions: Supervised release is required if the Court imposes a term of imprisonment of more than one year or when required by statute, pursuant to U.S.S.G. § 5Dl.l(a). If a sentence of imprisonment of one year or less is imposed, a term of supervised release is not required but is optional, pursuant to U.S.S.G. § 5Dl.l(b). The guideline range for a term of supervised release is at least one year but not more than three years for a defendant convicted of a Class C felony, pursuant to U.S.S.G. § 5D1.2(a)(2). However, pursuant to U.S.S.G. § 5Dl.l(c), the 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 deporta-ble alien who likely will be deported after imprisonment.

J.A. 79 (emphasis added). Invoking Apli-cano’s two previous assault convictions, the PSR recommended that the court impose a two-year term of supervised release, in consideration of the “safety of the community.” Id. at 85.

On February 28, 2014, Aplicano submitted a second letter to the district court (the “sentencing letter”), acknowledging that he did not dispute the PSR’s calculation of his total offense level as 10.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Saquon Dozier
Fourth Circuit, 2023
United States v. Sean Page
Fourth Circuit, 2023
United States v. Breshawn Hamilton
66 F.4th 1267 (Eleventh Circuit, 2023)
United States v. Abdi Osman
Fourth Circuit, 2022
United States v. Kaylan Ellis
Fourth Circuit, 2021
United States v. James Arbaugh
951 F.3d 167 (Fourth Circuit, 2020)
United States v. Jason Gleaton
Fourth Circuit, 2020
United States v. Jerry Hartley
Fourth Circuit, 2019
United States v. Jamario Hill
Fourth Circuit, 2018
United States v. Olwin Brown, Jr.
712 F. App'x 251 (Fourth Circuit, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
792 F.3d 416, 2015 U.S. App. LEXIS 11649, 2015 WL 4081258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gerson-aplicano-oyuela-ca4-2015.