* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court generally

disfavors the citation or orders and judgments; nevertheless, an order and judgment may

be cited under the terms and conditions of 10th Cir. R. 36.3.

** After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. This appeal therefore is

ordered submitted without oral argument.

UNITED STATES COURT OF APPEALS

Filed 1/24/97

TENTH CIRCUIT

 

UNITED STATES OF AMERICA, )

)

Plaintiff-Appellee, )

)

vs. ) No. 96-2204

) (D.C. No. CR-96-91-HB)

MARCO ANTONIO RODRIGUEZ-MERAZ, ) (D.N.M.)

)

Defendant-Appellant. )

 

ORDER AND JUDGMENT*

 

Before TACHA, BALDOCK, and LUCERO, Circuit Judges.**

 

Defendant Marco Antonio Rodriguez-Meraz, a citizen of Mexico, pled guilty to

one count of reentry of a deported alien subsequent to a felony conviction in violation of

8 U.S.C. § 1326 (a)(1), (2), & (b)(1). Pursuant to his plea agreement, Defendant

stipulated to his deportability and waived a formal deportation hearing. An immigration
2

judge subsequently ordered Defendant deported. Thereafter, the district court sentenced

Defendant to two years imprisonment and one year supervised release. The court

imposed the standard conditions of supervised release, see 18 U.S.C. § 3563, including

the conditions that Defendant (1) not leave the judicial district without permission of the

court or probation office, and (2) report to the probation office within the first five days

of each month. Defendant asked the district court to strike the two foregoing conditions

of his supervised release because he had been ordered deported to Mexico. The district

court refused to alter the terms of Defendant’s supervised release, but indicated that the

two conditions would not apply if Defendant were deported, and thereafter remained

outside the United States:

THE COURT: Upon release from confinement, he’s on supervised

release for a term of one year. Within 72 hours of release from custody,

report to the nearest probation office. If he’s deported and then returns,

he’s to report to the nearest probation office to complete the remaining

portion of his supervised release. . . .

[DEFENDANT’S COUNSEL]: One final thing, without waiving the

supervised release departure issue, when I’m looking at the recommended

conditions of supervised release, one is that the defendant shall not leave

the judicial district or other area without permission of the court or

probation officer. Can I request that that be stricken?

THE COURT: Sure. Well, if he’s deported, why that’s legal.

[DEFENDANT’S COUNSEL]: Yes sir. And, secondly, it also says

he has to give a written report within five days of each month under a

standard condition. It just seems redundant to me that we impose it, and

there’s no way to carry it out.

THE COURT: Once he’s deported, that’s waived, of course.
3

Rec. Vol. III at 8-10.

On appeal, Defendant asserts that the district court abused its discretion by

requiring Defendant to remain within the district and periodically report to the probation

office as conditions of his supervised release. Because he was ordered deported,

Defendant claims he cannot comply with the conditions of his supervised release once he

returns to Mexico. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

We affirm.

While we review the district court’s application of the sentencing guidelines de

novo, we review court-ordered conditions of supervised release for an abuse of discretion.

United States v. Edgin, 92 F.3d 1044, 1047 (10th Cir. 1996), cert. denied, S. Ct. 

(1997). “The district court has broad discretion over conditions for post-incarceration

supervised release, as explicitly granted by the sentencing guidelines and the statutes

upon which those guideline sections are based.” United States v. Pugliese, 960 F.2d 913,

915 (10th Cir. 1992) (citing 18 U.S.C. § 3583(d) and U.S.S.G. § 5D1.3(b)).

Under Application Note 1 of U.S.S.G. § 5D1.1, the district court has discretion to

depart from the requirement that a term of supervised release be imposed following

imprisonment. In this case, however, the court declined to depart so that Defendant

would be required by law to notify the probation office if he returned to the United States

during his period of supervised release. While recognizing that Defendant’s term of

supervised release would remain in effect despite his deportation, see United States v.
4

Brown, 54 F.3d 234, 237-39 (5th Cir. 1995), the court also recognized the difficulty of

imposing an effective program of supervised release upon Defendant after deportation.

See id. at 238 n.3. The district court’s comments at sentencing indicate that the court

intended the challenged terms of supervised release to apply only while Defendant is

present within the United States. If Defendant is deported and returns before his one year

term of supervised release ends, he once again becomes subject to all the conditions of his

supervised release. See id. at 239 (offender reentering the United States before expiration

of supervision should be supervised) (citing X Probation Manual Guide to Judiciary

Policies and Procedures IV, § 18). Absent any indication of Congressional intent that the

sentencing decision of the district court was improper, we believe the court did not abuse

its discretion in imposing the foregoing terms and conditions of supervised release upon

Defendant.

AFFIRMED.

Entered for the Court,

Bobby R. Baldock

Circuit Judge