IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 guilty to illegal reentry and

received a sentence of 41 months in prison, 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 supervised release 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 statute and [] defendant is a deportable alien who likely will be

United States Court of Appeals

Fifth Circuit

F I L E D

April 15, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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

deported after imprisonment.” Because Kelly-Aguirre did not object to the

imposed sentence, he is entitled only to plain error review. See United States v.

Dominguez-Alvarado, 695 F.3d 324, 328 (5th Cir. 2012). To establish such an

error, Kelly-Aguirre must show a forfeited error that is clear or obvious and that

affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135

(2009). If he makes such a showing, this court has the discretion to correct the

error but will do so only if it seriously affects the fairness, integrity, or public

reputation of judicial proceedings. See id.

The district court was aware of the provisions of § 5D1.1(c) because they

were provided in the presentence report, which the court adopted. Although

Kelly-Aguirre asserts that the court failed to explain its imposition of supervised

release, the court made statements at sentencing addressing Kelly-Aguirre’s

criminal history and indicating a need to protect the public. See DominguezAlvarado, 695 F.3d at 329-30. Thus, Kelly-Aguirre has not shown that the

district court committed a procedural error at sentencing. See Gall v. United

States, 552 U.S. 38, 51 (2007).

Additionally, Kelly-Aguirre fails to show error with regard to the

substantive reasonableness of his sentence. See id. The court’s statements at

sentencing provided support for the imposed term of supervised release. See

United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Although KellyAguirre correctly asserts that § 5D1.1(c) advises that “ordinarily” supervised

release should not be imposed where, as here, a defendant is apt to be deported

after he serves his prison sentence, “the court should [] consider imposing a term

of supervised release . . . if the court determines it would provide an added

measure of deterrence and protection.” § 5D1.1, comment. (n.5).

Kelly-Aguirre has not presented a clear or obvious error affecting his

substantial rights. See Puckett, 556 U.S. at 135. Consequently, the judgment

of the district court is AFFIRMED.

2

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