United States v. Alvarado

• Decision Date: 24 June 2013
• Docket Number: Docket No. 12–3413–cr.
• Parties: UNITED STATES of America, Appellee, v. Hemenegildo Padilla ALVARADO, aka Hemengildo Padilla Alvarado, aka Hemenegildo Alvarado Padilla, aka Hemenegildo Alvarado, aka Angel Burgos, aka Jose Hernandez, aka Indalecio Rodriguez, aka Pablo Castillo, aka Jose Martinez, aka Pablo Castio, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

720 F.3d 153

UNITED STATES of America, Appellee,

v.Hemenegildo Padilla ALVARADO, aka Hemengildo Padilla Alvarado, aka Hemenegildo Alvarado Padilla, aka Hemenegildo Alvarado, aka Angel Burgos, aka Jose Hernandez, aka Indalecio Rodriguez, aka Pablo Castillo, aka Jose Martinez, aka Pablo Castio, Defendant–Appellant.

Docket No. 12–3413–cr.

United States Court of Appeals,Second Circuit.

Argued: June 19, 2013.

Decided: June 24, 2013.

Peggy Cross–Goldenberg (Edward S. Zas, on the brief), Assistant Federal Public Defenders, Federal Defenders of New York, Inc., New York, NY, for Hemenegildo Padilla Alvarado.

P. Ian McGinley (Brent S. Wible, on the brief), Assistant United States Attorneys, for Preet Bharara, United States Attorney, United States Attorney's Office for the Southern District of New York, New York, NY, for the United States of America.

Before: CALABRESI, CABRANES, and B.D. PARKER, Circuit Judges.

PER CURIAM:

In this appeal we consider whether the United States District Court for the Southern District of New York (William H. Pauley, III, Judge ) plainly erred by sentencing defendant-appellant Hemenegildo Padilla Alvarado (“Padilla”) to, inter alia, a three-year term of supervised release even though Section 5D1.1(c) of the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) provides that district courts “ordinarily should not impose a term of supervised release in a case in which ... the defendant is a deportable alien who likely will be deported after imprisonment.” U.S.S.G. § 5D1.1(c).¹ Although Padilla is such an alien, the District Court imposed a sentence including supervised release after stating its view that the sentence was needed to deter Padilla from re-entering the United States illegally in the future. In these circumstances, we join some of our sister Circuits in concluding that imposing supervised release is appropriate and not a departure from the amended version of Section 5D1.1 of the Guidelines if the district court finds “that supervised release would provide an added measure of deterrence and protection based on the facts and circumstances of a particular case.” United States v. Valdavinos–Torres, 704 F.3d 679, 693 (9th Cir.2012) (quotation marks omitted); United States v. Dominguez–Alvarado, 695 F.3d 324, 329 (5th Cir.2012). The District Court made such a finding here, and therefore no further explanation was necessary.

Accordingly, we affirm the judgment of the District Court.

BACKGROUND

Padilla, a citizen of the Dominican Republic, was indicted on August 10, 2011, on one count of illegally re-entering the United States, in violation of 8 U.S.C. § 1326(a) and (b)(2), after he was deported following a conviction for an aggravated felony. Padilla had previously been deported from the United States twice—first in 2003 and again in 2008. Indeed, after his first deportation, he returned to the United States and, in 2006, was convicted of illegal re-entry following yet another conviction for an aggravated felony. He was subsequently deported in 2008. Nonetheless, he reentered the United States again, and was most recently found to be in the United States illegally on January 21, 2011, when New York City police officers arrested him in Manhattan in connection with a robbery. He pleaded guilty to the instant charged offense on October 19, 2011, without a plea agreement.

At the sentencing hearing, which took place on June 5, 2012, the District Court focused on the need to deter Padilla from re-entering the United States illegally. Specifically, the District Court stated that Padilla “ha[d] demonstrated through his conduct that he's really not deterred by a significant term of imprisonment” and that because of Padilla's “complete disregard for the law of the United States,” it was necessary to “escalat[e] [the] terms of imprisonment.” App'x 55. The District Court also noted that there was “a need in this case to protect the community because [Padilla] has a history of violent crimes of different kinds and crimes that threaten public safety.” Id.

Padilla's undisputed Guidelines range was 57 to 71 months, see id. at 27, 35, but Padilla asked the District Court for a below-Guidelines sentence of 36 months' imprisonment, id. at 50. The government argued that a Guidelines sentence was appropriate, given that Padilla had (1) previously been deported from the United States on two separate occasions, (2) committed the instant offense while on supervised release, and (3) committed serious crimes involving violence in the United States. Id. at 51–52. The District Court concluded that a term of 36 months' imprisonment was not sufficient to deter him from attempting to re-enter the United States illegally. It went on to express its view that it “ha[d] no real hope that [Padilla was] not going to try to turn around and come right back into the United States after any term of imprisonment that he serves.” Id. at 56. It emphasized, moreover, that Padilla needed to “get the message” that he could not return to the United States. Id.

The District Court ultimately sentenced Padilla to 57 months' imprisonment, a term at the bottom of the applicable Guidelines range, “to be followed by three years of supervised release,” subject to certain conditions, including that he “obey all immigration laws and comply with all directives of immigration authorities.” Id. at 57. Padilla did not object to the imposition of supervised release before the District Court.

This appeal followed.

DISCUSSION

On appeal, Padilla contends that the District Court erred in imposing a three-year term of supervised release. In particular, he argues that the District Court plainly erred by not adequately explaining why supervised release was warranted, given that Section 5D1.1(c) of the Guidelines states that district courts “ordinarily should not impose a term of supervised release in a case in which ... the defendant is a deportable alien who likely will be deported after imprisonment.” U.S.S.G. § 5D1.1(c).

A.

Criminal sentences are generally reviewed for reasonableness, which “requires an examination of the length of the sentence (substantive reasonableness) as well as the procedure employed in arriving at the sentence (procedural reasonableness).” United States v. Johnson, 567 F.3d 40, 51 (2d Cir.2009). A district court errs procedurally when “it fails to calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain the chosen sentence.” United States v. Robinson, 702 F.3d 22, 38 (2d Cir.2012) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)).

Where, as here, a defendant contests the procedural reasonableness of his sentence on appeal, but did not raise his objections before the district court, we review for plain error. United States v. Verkhoglyad, 516 F.3d 122, 127–28 (2d Cir.2008). A finding of “plain error” requires that

(1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant's substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

United States v. Marcus, 560 U.S. 258, 130 S.Ct. 2159, 2164, 176 L.Ed.2d 1012 (2010) (citations, alteration, and internal quotation marks omitted); see also United States v. Zangari, 677 F.3d 86, 95 (2d Cir.2012). Rigorous plain error analysis is especially appropriate in contexts that present the possibility of “sandbagging” i.e., the risk that a defendant will strategically withhold an objection below, only to raise it on appeal. We do not suggest that this was done in the case before us. But the situation presented in this appeal is one that poses such a danger. Defendants in similar circumstances might well be tempted to say nothing about a district court's failure to give specific reasons for the imposition of supervised release and then, if displeased by the sentence the district court gives, seek an order for resentencing on appeal.

B.

As noted, Padilla's central complaint is that the District Court did not adequately explain why a term of supervised release was warranted in his case. He relies on the fact that Section 5D1.1(c) generally discourages district courts from imposing supervised release on aliens “who likely will be deported after imprisonment.” SeeU.S.S.G. § 5D1.1(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 deportable alien who likely will be deported after imprisonment.” (emphasis supplied)). However, the commentary accompanying Section 5D1.1 clarifies that “ [t]he court should ... consider imposing a term of supervised release on such a defendant if the court determines it would provide an added measure of deterrence and protection based on the facts and circumstances of a particular case.

” Id.§ 5D1.1, cmt. n. 5 (italics in original). ²

Accordingly, although imposing a term of supervised release on aliens “who likely will be deported after imprisonment” is “ordinarily” discouraged pursuant to Section 5D1.1(c), the Guidelines commentary specifies that a district court should consider imposing supervised release on such defendants if it would provide “an added measure of deterrence and protection.” Id.; see also United States v. Valdavinos–Torres, 704 F.3d 679, 693 (9th Cir.2012); United States v. Dominguez–Alvarado, 695 F.3d 324, 329 (5th Cir.2012) (“To be sure, supervised release should not be imposed absent a determination that supervised release would provide an added measure of deterrence and protection based on the facts and circumstances of a particular case.”).³ In other words, if a...