### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-50520 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. RODGER GEOVANNY KELLY-AGUIRRE, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 2:11-CR-1662-1

Before REAVLEY, JOLLY and DAVIS, Circuit Judges. PER CURIAM: * Rodger Geovanny Kelly-Aguirre pleaded g uilty to i l legal reentry and received a sentence of 41 months in p rison, to be followed by a three-year term of supervised release. He appeals, asserting that his sentence is unreasonable because the court imposed a term of s u pervised relea se notwithstanding § 5D1.1(c) of the Sentencing Guidelines, which provides that supervised release “ordinarily” should not be imposed “in a case in which supervised release is not required by statu te and [] defendant is a deportable a lien who likely will be U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D April 15, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-50520 Document: 00512208406 Page: 1 Date Filed: 04/15/2013No. 12-50520

deported after imprisonment.” Because Kelly-Aguirr e d id not object to the imposed sentence, he is entitled only t o plain error review. See United States v. Dominguez-Alvarado , 695 F.3d 3 2 4 , 3 28 (5th C ir. 2012). To e stablish such an error, Kelly-Aguirre must show a forfeited error that is c lear or obvious a nd that affects his substan t ial rights. See Puckett v. U n ited States , 556 U.S. 129, 135 (2009). If he makes such a showing, this court h as the discretion to correct the

error but will do so only if i t seriously a ffects the fair n e s s, integrity, or public reputation of judicial proceedings. See i d. The district court was aware of the provisions of § 5D1.1(c) because they

were provided in the presentence report, which the court a d opted. Although Kelly-Aguirre asserts that the court failed to e xplain its imposition o f supervised

r elease, the court made statements at sentencing addressing Kelly-Agui r r e ’ s criminal history and indi c a t ing a need t o protect the public. See DominguezAlvarado , 695 F .3d at 329-30. Thus , K e l l y - A guirre has not shown that the district c ourt committed a p rocedural error a t s entencing. See Gall v. United States , 552 U.S. 38, 51 (2007). Additionally, Kelly-Aguirre fails to show err o r w i th regard to the substantive reasonableness of his sente n ce. See id. T he court’s statements at sentencing provided s u p p o r t for the imposed term of supervised release. See United States v. Cooks , 589 F.3d 173, 1 86 ( 5th Cir. 2 0 0 9 )

. Al t h ough KellyAguirre correctly a sserts that § 5D1.1(c) advises that “ o r d i n a rily” supervised release should not be imposed where, as here, a defendant is apt to be deported after he serves h is prison sentence, “the court should [] c o nsider i mposing a term of supe r vised release

. . . i f the court determines it would p rovide an added measure of deterrence and protection.” § 5D1.1, comment. (n.5). K elly-Aguirre has not presented a clear or obvious error affectin g h i s substantial rights. See Puckett , 556 U.S. at 1 3 5

. C o n s equently, t he judgment of the district court is AFFIRMED.

2 Case: 12-50520 Document: 00512208406 Page: 2 Date Filed: 04/15/2013