NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 11-3743

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UNITED STATES OF AMERICA

v.

JORGE OMAR LOPEZ-ALFARO

also known as

JORGE OMAR LOPEZ

also known as

JORGE AGUILAR

also known as

GEORGE CARCAMO

Jorge Omar Lopez-Alfaro,

Appellant

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Crim. No. 2-09-00735-001)

Honorable Juan R. Sanchez, District Judge

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Submitted under Third Circuit LAR 34.1(a)

October 2, 2012

BEFORE: FUENTES, FISHER and GREENBERG, Circuit Judges

(Filed: October 3, 2012)

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OPINION OF THE COURT

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GREENBERG, Circuit Judge

This matter comes on before this Court on an unusually narrow appeal by 

appellant Jorge Omar Lopez-Alfaro from a judgment of conviction and sentence dated 

September 26, 2011, entered pursuant to his plea of guilty in this criminal case. The 

District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28 

U.S.C. § 1291 and 18 U.S.C. § 3742(a).

.

The background of the case is as follows. Lopez-Alfaro, a native of Mexico who 

was in this country illegally, pled guilty in a state court in Florida to a charge of 

attempted first degree murder. The Florida court sentenced him to a six-year custodial 

term, but apparently because the court anticipated that he would be removed from the 

country after he was released it did not impose any type of supervisory term to follow

Lopez’s release following his service of his custodial term. In fact, he was removed from 

this country on or about August 11, 2005, following the completion of his custodial term.

Subsequently, Lopez-Alfaro reentered this country illegally and the Philadelphia 

police arrested him for various state offenses. The state court, however, released him

pending the state court proceedings but federal immigration agents then arrested him 

because of his illegal status in this country. This federal arrest led to his indictment in the 

District Court for unlawful reentry contrary to 8 U.S.C. §§ 1326(a) and (b)(2). He 

pleaded guilty to this offense and the Court sentenced him within the statutory and 

guideline ranges to a 47-month custodial term to be followed by a three-year term of 

supervised release. The state court charges have been dismissed.
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Lopez-Alfaro appeals, contending only that his term of supervised release was 

unlawful because the District Court imposed it as a punishment for his offense of 

unlawfully reentering the country even though a term of supervised release cannot be 

imposed as a punishment. He acknowledges, however, that even though the Court 

explained why it was imposing the term of supervised release, he did not object to the 

imposition of the term in that Court. Consequently, we review the sentence for plain 

error, see United States v. Maurer, 639 F.3d 72, 77 (3d Cir. 2011), but that review 

encompasses an exercise of plenary review to the extent that Lopez-Alfaro contends that 

the Court erred as a matter of law in imposing the term of supervised release. See United 

States v. Wise

Lopez-Alfaro correctly sets forth the law underlying the reasons for the imposition 

of a term of supervised release but the problem with his appeal is that the District Court 

imposed the sentence of supervised release for appropriate statutory reasons. Therefore, 

the Court did not plainly err, or err at all, in imposing the term.

, 515 F.3d 207, 217 (3d Cir. 2008).

As the government points out, 18 U.S.C. § 3553(a) sets forth the factors that a 

district court should consider in imposing a sentence. 18 U.S.C. § 3583(c), in turn, 

incorporates the factors for a court to consider in determining whether to impose a term 

of supervised release. Among the sentencing factors incorporated by section 3583(c) for 

a court to consider in determining whether to impose a term of supervised release is the 

need “to afford adequate deterrence to criminal conduct.” 18 U.S.C. § 3553(a)(2)(B). 

But the factor of “punishment” as a basis for determining the length of a sentence set 

forth in 18 U.S.C. § 3553(a)(2)(A) is not incorporated as a factor for a court to take into 
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account when determining whether to impose a term of supervised release. 

Consequently, as the Supreme Court set forth in Tapia v. United States, 131 S.Ct. 2382, 

2388 (2011), “a court may not

In view of the clear law we must ascertain why the District Court imposed the 

term of supervised release. Our task is hardly difficult. The District Court was aware 

that because the Florida court in sentencing Lopez-Alfaro did not impose any type of 

supervision on him to follow his release from custody it was not possible to use a

summary procedure for punishment when he illegally returned to this country. The Court 

quite reasonably recognized that Lopez-Alfaro again might return to the country illegally 

after being removed and it sought to ensure that he could be punished for so reentering if 

he did so without the initiation of a new plenary criminal proceeding. It therefore 

indicated that it was imposing a term of supervised release on his federal conviction for 

unlawful reentry because “[b]ased on the experience we had before with him, that he 

reentered the United States, I think it’s wise to impose some kind of supervision . . . . So 

I do believe that despite the defendant’s impending deportation, that I should impose a 

maximum term of supervised release, so that if he comes back into the United States 

without authorization, he can be found in violation of supervised release.” App. at 187-

88.

take account of retribution . . . when imposing a term of 

supervised release” (emphasis in original).

Of course, once Lopez is removed from this country the term of supervised release 

will have no meaning as far as he is concerned unless he returns to this country illegally. 

It accordingly follows that the District Court imposed the sentence strictly for reasons of 
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deterrence rather than as a punishment and therefore it was perfectly appropriate to 

provide for supervised release to follow his release from custody even if he was to be 

removed after service of his custodial term.

Finally we note that we are aware that the Sentencing Commission has indicated

that while ordinarily a court should not impose a term of supervised release on a 

defendant expected to be removed from the country because if he illegally returns the 

need for adequate deterrence and protection of the public can be served by a new 

prosecution for unlawful reentry. But the commission also has indicated that “[t]he 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 app. note 5. 

The Court when it imposed the term of supervised release acted in exact conformity with 

this note.

The judgment of conviction and sentence of September 26, 2011, will be affirmed.