United States v. Dominguez–Alvarado

• Decision Date: 12 September 2012
• Docket Number: No. 11–41304.,11–41304.
• Citation: 695 F.3d 324
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Pablo DOMINGUEZ–ALVARADO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

695 F.3d 324

UNITED STATES of America, Plaintiff–Appellee,

v.Pablo DOMINGUEZ–ALVARADO, Defendant–Appellant.

No. 11–41304.

United States Court of Appeals,Fifth Circuit.

Sept. 12, 2012.

Amy Howell Alaniz, Asst. U.S. Atty., McAllen, TX, Renata Ann Gowie, Asst. U.S. Atty., Houston, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Fed. Pub. Def., H. Michael Sokolow, Asst. Fed. Pub. Def., Houston, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, SMITH and HIGGINSON, Circuit Judges.

HIGGINSON, Circuit Judge:

Defendant–Appellant Pablo Dominguez–Alvarado appeals the district court's imposition of a three-year term of supervised release as part of his criminal sentence. For the following reasons, we affirm.

FACTS AND PROCEEDINGS

Dominguez–Alvarado, a citizen of Mexico, pleaded guilty to a one-count indictment charging him with being present in the United States unlawfully after removal, in violation of 8 U.S.C. § 1326. The presentence report (“PSR”), dated September22, 2011, calculated his total offense level to be 21 with a criminal history category of II, resulting in a recommended Sentencing Guidelines range of 41 to 51 months of imprisonment. The PSR also reflected that the applicable Guidelines range for a term of supervised release was at least two years but not more than three years.

On November 4, 2011, a Second Addendum was added to the PSR to reflect applicable Guidelines Amendments that went into effect November 1, 2011. The Second Addendum noted that should the court impose a term of supervised release, the Guidelines range had changed to at least one year, but not more than three years. The Second Addendum also added:

Pursuant to U.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 will likely be deported after imprisonment. However, as per Application Note 5, the [court] should, however, 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.

Dominguez–Alvarado did not object to the PSR.

The district court sentenced Dominguez–Alvarado to a term of 46 months' imprisonment, to be followed by three years of supervised release. Dominguez–Alvarado objected to the reasonableness of the 46 months of imprisonment. Dominguez–Alvarado then added, “[a]lso [I] object to the term of supervised release that's imposed as an upward departure,” to which the district court responded, “[t]hank you, sir.”

STANDARD OF REVIEW

We review sentences for reasonableness by engaging in a bifurcated review. 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 sentencing 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 an explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51, 128 S.Ct. 586. If the sentencing decision is procedurally sound, we then consider the “substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id.

If a defendant fails to properly object to an alleged error at sentencing, however, the procedural reasonableness of his sentence is reviewed for plain error. See United States v. Mondragon–Santiago, 564 F.3d 357, 361 (5th Cir.2009). “The standard ... shields this court from ruling on issues that have been insufficiently vetted below.” United States v. Chavez–Hernandez, 671 F.3d 494, 497 (5th Cir.2012). Objections must be raised to place the district court on notice about potential issues for appeal, and to give the district court an opportunity to “clarif[y] or, if necessary, correct [ ] itself.” United States v. Hernandez–Martinez, 485 F.3d 270, 272–73 (5th Cir.2007); see also United States v. Rodriguez, 15 F.3d 408, 414 (5th Cir.1994) (“A party must raise a claim of error with the district court in such a manner so that the district court may correct itself and thus, obviate the need for our review.”). Therefore, objections that are too vague are reviewed on appeal for plain error because they cannot “alert the court to the legal argument [the party] now presents.” Hernandez–Martinez, 485 F.3d at 272.

Dominguez–Alvarado failed to raise his claim of error in a manner that could have placed the district court on notice of the error he now asserts. On appeal, he argues that because the Guidelines state that a term of supervised release “ordinarily” should not be imposed, the district court should have provided fact-specific reasons to justify the imposition of a term of supervised release. Yet before the district court, his objection to “the term of supervised release that's imposed as an upward departure” makes no reference to the Guidelines' use of the word “ordinarily,” nor a request for additional explanation of the reasons for his sentence. Further, in light of his preceding objection to the substantive reasonableness of the term of imprisonment, it is unclear that Dominguez–Alvarado's statement was a procedural objection to the imposition of any term of supervised release, as opposed to a substantive objection to the length of the term of supervised release. Accordingly, we review Dominguez–Alvarado's claim for plain error. See Mondragon–Santiago, 564 F.3d at 361 (applying plain error review where defendant's objection “sufficed to alert the district court of his disagreement with the substance of the sentence, but not with the manner in which it was explained”).¹

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 v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (internal quotation marks and alterations omitted).

ANALYSIS

A district court must apply the Guidelines version in effect at the time of sentencing. 18 U.S.C. § 3553(a)(4)(A)(ii); United States v. Martin, 596 F.3d 284, 286 (5th Cir.2010). Effective November 1, 2011, Guidelines § 5D1.1 was amended to add subsection (c), which provides: “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.” U.S.S.G. § 5D1.1(c). The commentary accompanying § 5D1.1(c) states:

Application of Subsection (c).—In a case in which the defendant is a deportable alien specified in subsection (c) and supervised release is not required by statute, the court ordinarily should not impose a term of supervised release. Unless such a defendant legally returns to the United States, supervised release is unnecessary. If such a defendant illegally returns to the United States, the need to afford adequate deterrence and protect the public ordinarily is adequately served by a new prosecution. The court should, however, 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.

U.S.S.G. § 5D1.1, cmt. (n. 5).²

On appeal, Dominguez–Alvarado argues that because the Guidelines state that the sentencing court “ordinarily should not impose a term of supervised release,” the district court departed from the Guidelines recommendation when it imposed a three-year term of supervised release and, therefore, erred in failing to explain its deviation from the Guidelines recommendation. We disagree.

When interpreting the Guidelines, “it is necessary to give meaning to all its words and to render none superfluous.” Rayo–Valdez, 302 F.3d at 318 (citing United States v. Vickers, 891 F.2d 86, 88 (5th Cir.1989), for the proposition that the Guidelines are subject to rules of statutory construction and interpretation). In order to avoid rendering the word “ordinarily” superf...