United States v. Gonzalez-Cortez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50200
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

GABRIEL GONZALEZ-CORTEZ,

Defendant - Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:18-CR-625-1

Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
Gabriel Gonzalez-Cortez pleaded guilty to illegal reentry after
deportation and was sentenced within the guidelines range to forty-six months
of imprisonment and three years of supervised release. The supervised release
was to be non-reporting if he were excluded, deported, or removed. Gonzalez,
who was sentenced alongside a group of defendants, did not object to the

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
April 15, 2020

Lyle W. Cayce
Clerk
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No. 19-50200
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guidelines range, request a sentence below the guidelines range, or object to
the sentence imposed. He timely appealed and now raises only challenges to
his supervised release: (1) he argues that the district court committed
procedural error by failing to explain its decision to impose supervised release
notwithstanding the guidance of Sentencing Guideline § 5D1.1(c) that
supervised release ordinarily should not be imposed in cases involving
deportable aliens; and (2) he argues that the supervised release portion of the
sentence is substantively unreasonable. We AFFIRM.
Examining the procedural question first, we conclude, and the parties
agree, that plain error review applies given the lack of any objection. See
United States v. Dominguez-Alvarado, 695 F.3d 324, 327–28 (5th Cir. 2012).
1

To demonstrate plain error, Gonzalez must show a forfeited error that is clear
or obvious and that affected his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have the
discretion to correct the error, but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See id.
Section 5D1.1(c) provides that a “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.” However, § 5D1.1(c) is only “hortatory,” and the
otherwise applicable supervised release term—here, one to three years—
remains the guidelines sentence for a deportable alien if the court chooses to
impose supervised release. Dominguez-Alvarado, 695 F.3d at 329; see U.S.S.G.

1
The Supreme Court recently addressed whether a formal objection after
pronouncement of sentence is necessary to avoid plain error review of a substantive
reasonableness challenge where the defendant makes specific arguments; however, the Court
did not address “what is sufficient to preserve a claim” of procedural error because that issue
was not before it. Holguin-Hernandez v. United States, 140 S. Ct. 762, 767 (2020). Because
Gonzalez made no objection of any kind, it is clear that plain error review applies.
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§ 5D1.2(a)(2); 18 U.S.C. § 3559(a)(3) (describing classifications of felonies).
This Guidelines provision notwithstanding, district courts retain discretion “to
impose terms of supervised release as they deem necessary to provide an added
measure of deterrence and protection.” United States v. Becerril-Pena, 714
F.3d 347, 349 (5th Cir. 2013) (internal quotation marks and citation omitted);
see also U.S.S.G. § 5D1.1 cmt. n.5 (advising that a district court should
“consider imposing a term of supervised release” if it determines that
supervised release “would provide an added measure of deterrence and
protection based on the facts and circumstances of a particular case”).
Gonzalez points out that we have required a “particularized explanation”
for a decision to impose such a term, al though we have also said one sentence
is enough. Becerril-Pena, 714 F.3d at 349 (internal quotation marks and
citation omitted). Here, the district court did not make a “particularized”
statement. We will, therefore, assume arguendo that the district court
committed an error that was plain.
Nonetheless, we conclude that Gonzalez has failed to show the alleged
error affected his substantial rights. To make this determination, we consider
whether the record indicates that the district court would not have imposed
supervised release if it had been required to provide more specific reasons for
its sentencing decision. See, e.g., United States v. Cancino-Trinidad, 710 F.3d
601, 606–0 7 (5th Cir. 2013). In turn, we can look at whether the defendant’s
criminal history warranted the imposition of supervised release. See id.
(concluding that the error did not affect the defendant’s substantial rights
because the district court implicitly considered the need for deterrence and, in
any event, the defendant’s criminal record supported a finding that supervised
release was warranted to provide an added measure of deterrence and
protection). Here, Gonzalez was convicted of a state drug felony in 2002.
Shortly after his release from prison for that charge (in 2008), he was removed
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from the United States. In August of 2015, he was arrested for illegal re-entry
and removed shortly thereafter, in September of 2015. However, he was again
arrested in November of 2015 for being found in the United States after
previous deportation. He received a sentence of time served of 415 days and
was removed shortly thereafter in December of 2016. Undeterred, he was
arrested for the charge that gave rise to the current conviction fewer than two
years later (in August of 2018).
Given his prior reentries, as well as his recent pattern of failing to heed
the strictures of removal, the imposition of supervised release was needed to
provide an added measure of deterrence. See generally United States v.
Ramirez, 773 F. App’x 193, 195 (5th Cir. 2019) (“Given Ramirez’s lengthy
criminal history and several prior re-entries into the United States, the district
court would not have concluded that supervised release was unwarranted even
if it had explained its reasons in greater details.”), cert. denied, 2020 WL
872434 (U.S. Feb. 24, 2020) (No. 19-6199). We conclude that, in light of
Gonzalez’s history, the district court’s failure to provide a “particularized
explanation” for its imposition of this term of supervised release did not affect
his substantial rights.
2

Turning next to the claim of substantive error, we note that the sentence
was within the guidelines and thus presumptively reasonable. See Cancino-
Trinidad, 710 F.3d at 607–08 (noting the lack of a “compelling rebuttal” to the
presumption of reasonableness). We also note that this issue is subject to plain

2
Additionally, even if it did, given his continued failure to remain outside the country
in light of his removals (thus warranting a term of supervised release), we conclude that we
would not exercise our discretion to reverse the sentence. See Cancino-Trinidad, 710 F. 3d
at 607 n.11 (noting that even if the procedural error affected Cancino-Trinidad’s substantial
rights, the case did not merit the exercise of our court’s discretion to remand for
resentencing); Becerril-Pena, 714 F.3d at 350 (“This section does not evince an intent to confer
a benefit upon deportable aliens that is not available to other defendants.”).
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error review because, unlike in Holguin-Hernandez, Gonzalez did not object to
the guidelines range, request a particular sentence, ask the court to consider
imposing a below-guidelines sentence, or object to the within-guidelines
sentence imposed. See 140 S. Ct. at 766–67 (holding that a defendant preserves
an appellate challenge to the substantive reasonableness of his sentence as
“greater than necessary” if he advocated in the district court for a particular
sentence). In any event, under any standard of review, Gonzalez failed to rebut
the presumption of reasonableness.
AFFIRMED.

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