United States v. Velarde-Aguilar

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-10328
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

LUIS ALBERTO VELARDE-AGUILAR,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CR-321-1

Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM:
*

Luis Alberto Velarde-Aguilar pleaded guilty to illegal reentry after
removal and was sentenced within the advisory guidelines range to 17 months
of imprisonment and three years of supervised release. Velarde-Aguilar, a
deportable alien, argues that the district court erred by sentencing him to
supervised release without providing a particularized explanation, in light of
U.S.S.G. § 5D1.1(c). Because Velarde-Aguilar did not object in the district

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
March 25, 2020

Lyle W. Cayce
Clerk
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No. 19-10328
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court to the imposition of supervised release or the lack of an explanation
therefor, his argument is subject to plain-error review. See United States v.
Dominguez-Alvarado, 695 F.3d 324, 328 (5th Cir. 2012); see also Puckett v.
United States, 556 U.S. 129, 135 (2009) (stating that reversible plain error
requires a showing that a clear or obvious forfeited error affected the
defendant’s substantial rights and seriously affects the fairness, integrity, or
public reputation of judicial proceedings).
Section 5D1.1(c) provides that “[t]he 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.” § 5D1.1(c). However, the commentary to
§ 5D1.1(c) instructs that the court “should” consider imposing a term of
supervised release if it determines that the additional penalty would provide
an added measure of deterrence and protection in light of the particular facts
and circumstances of the case. § 5D1.1, comment. (n.5). The district court
must make a “determination” or a “particularized explanation” justifying the
imposition of supervised release on a deportable alien. Dominguez-Alvarado,
695 F.3d at 329-30.
In this case, given the parties’ arguments at sentencing regarding
Velarde-Aguilar’s criminal history and recidivism, the district court’s explicit
consideration of the 18 U.S.C. § 3553(a) sentencing factors, and its implicit
consideration of § 5D1.1(c), it is arguable that the district court effectively
determined that a supervised release term was necessary to provide an added
measure of deterrence and protection. See Dominguez-Alvarado, 695 F.3d at
327, 329-30. In any event, even if the court’s explanation was clearly
erroneous, Velarde-Aguilar’s criminal history supports a finding that
supervised release was warranted in this case and, thus, his substantial rights
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No. 19-10328
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were not affected. See United States v. Cancino-Trinidad, 710 F.3d 601, 607
(5th Cir. 2013). Finally, Velarde-Aguilar fails to argue, and has therefore
abandoned any argument, that the purported error seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
The judgment of the district court is AFFIRMED.
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