NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

WALTER J. REYES, AKA Walter Joel 

Reyes-Trochez, 

Defendant-Appellant.

No. 19-50207 

D.C. No. 

3:19-cr-00419-LAB-1 

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, Chief District Judge, Presiding

Argued and Submitted July 7, 2020

Pasadena, California

Before: BERZON and COLLINS, Circuit Judges, and KATZMANN,**Judge.

Partial Concurrence and Partial Dissent by Judge COLLINS

Following a jury trial, Defendant Walter J. Reyes appeals his conviction and 

sentence for illegal entry into the United States, in violation of 8 U.S.C. § 1325. We 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Gary S. Katzmann, Judge for the United States Court 

of International Trade, sitting by designation.

FILED

DEC 4 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 19-50207

affirm the conviction but vacate the imposition of supervised release and remand for 

resentencing.

1. Sufficiency of the Evidence. A prior conviction under 8 U.S.C. § 1325 is 

a necessary predicate offense for a conviction for felony attempted illegal re-entry 

under 8 U.S.C. § 1325. Reyes had such a conviction from the District of Arizona in 

2012. To prove that prior conviction, the Government could have introduced the 

certified judgment from that case, see United States v. Arriaga-Segura, 743 F.2d 

1434, 1436 (9th Cir. 1984), but the parties both mistakenly took the position that the 

Government could not introduce the judgment from that case. Instead, heavily 

redacted versions of the docket sheet and plea agreement from the previous 

conviction were admitted into evidence. 

The docket sheet includes the following: (1) under the “Complaints” 

subheading at the top of the docket sheet, “8:1325 Illegal Entry” is listed; (2) the 

first unnumbered docket entry records the arrest of Walter Joel Reyes-Trochez; (3) 

after several redacted entries, the fourth numbered entry notes Reyes’ plea 

agreement; and (4) the fifth numbered docket entry records “Judgment and 

Commitment Issued” for Reyes. The plea agreement includes the same case number 

as the docket, reflects that the Government and Reyes entered a plea agreement, and 

that Reyes, defense counsel, and the Government dated and signed it. The substance 
3 19-50207

of the four-page plea agreement was entirely redacted; it includes no mention of 8 

U.S.C. § 1325 or illegal entry.

The Government presented evidence to tie Reyes to the “Walter Reyes” in the 

2012 case, including Reyes’ fingerprints and his signature from his 2018 arrest; a 

2012 fingerprint card from his A-file with his name on it; and expert testimony 

matching the fingerprints.

At the close of the Government’s case-in-chief, Reyes moved for judgment of 

acquittal pursuant to Federal Rule of Criminal Procedure 29 (hereinafter, “Rule 29”) 

on all elements of the charge. The court denied the Rule 29 motion. 

The question on appeal of the denial of a Rule 29 motion “is whether, after 

viewing the evidence in the light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime beyond a reasonable 

doubt.” United States v. Riggins, 40 F.3d 1055, 1057 (9th Cir. 1994) (quoting 

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Here, the answer is yes.

The only charge listed on the docket was 8 U.S.C. § 1325, a plea agreement 

was entered, and a judgment was reached, with only five docket entries in total. The 

record reflects that Reyes was subsequently removed from the United States. 

Viewing just this document, one could conclude that it is theoretically possible that 

Reyes pleaded guilty to some completely different charge and that the charge 

information in the docket under “Complaints” was never updated to reflect the actual 
4 19-50207

charge of conviction. But a reasonable jury could properly conclude that, in its view, 

any such doubt was not reasonable. As we have explained, “mere speculation . . . is 

not evidence,” and “[a] trial is not the place to explore the limits of imaginative 

musings; it is a place to decide facts based on evidence.” United States v. 

Castellanos-Garcia, 270 F.3d 773, 776 (9th Cir. 2001) (internal citations omitted).

The Rule 29 motion was properly denied.

2. Closing Argument. Reyes did not object at trial to the portions of the 

prosecution’s closing argument he now challenges, so we review for plain error. 

United States v. Alcantara-Castillo, 788 F.3d 1186, 1190 (9th Cir. 2015). The court 

“may reverse if: (1) there was error; (2) it was plain; (3) it affected the defendant’s 

substantial rights; and (4) ‘viewed in the context of the entire trial, the impropriety 

seriously affected the fairness, integrity, or public reputation of judicial 

proceedings.’” Id. at 1191 (quoting United States v. Combs, 379 F.3d 564, 568 (9th 

Cir. 2004)).

The prosecutor’s statements did not constitute vouching. They were tied to 

the evidence and neither expressed personal opinion nor placed the prestige of the 

Government behind a witness through personal assurances of the witness’s veracity. 

See United States v. Ruiz, 710 F.3d 1077, 1085–86 (9th Cir. 2013); cf. United States

v. Younger, 398 F.3d 1179, 1190–91 (9th Cir. 2005). In any event, the arguments 

did not affect Reyes’ substantial rights or the fairness, integrity or public reputation 
5 19-50207

of the proceeding. The court issued jury instructions cautioning the jury not to 

consider argument by the attorneys as evidence. The prosecutor did not suggest 

extra-record knowledge, and only one comment directly referred to evidence of a 

prior conviction (“On the prior conviction, the proof is overwhelming.”). We are 

unpersuaded by Reyes’ claim of reversible error.

3. Supervised Release. On appeal, Reyes does not challenge the term of 

imprisonment but contends that the district court erred in deviating from the 

Guidelines by imposing supervised release on a removable non-citizen and failing 

to explain this deviation. We agree.

Because there was no objection below, this court reviews for plain error 

whether the sentence was procedurally reasonable. United States v. Hammons, 558 

F.3d 1100, 1103 (9th Cir. 2009); see also United States v. Christensen, 732 F.3d 

1094, 1101 (9th Cir. 2013). 

a. Plain error. Supervised release is intended “to assist individuals in their 

transition to community life,” United States v. Johnson, 529 U.S. 53, 59 (2000), and 

“establish a period of readjustment,” United States v. Murguia-Oliveros, 421 F.3d 

951, 954 (9th Cir. 2005). Because defendants who are removable non-citizens are 

removed from the country once they complete the custodial portion of the sentence, 

“their transition to community life” will be on their own, not “assist[ed].” See

Johnson, 529 U.S. at 59. The primary purpose of supervised release – to assist a 
6 19-50207

defendant back into the community – cannot be fulfilled in cases involving 

removable non-citizens. 

Accordingly, the Guidelines provide that “[t]he 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 application note 

reiterates that “the court ordinarily should not impose a term of supervised 

release” in the case of a removable non-citizen. Id. cmt. n.5. The note continues:

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.

Id. (emphasis added). Supervised release, then, is appropriate only in 

“uncommon cases where added deterrence and protection are needed,” whereby 

the threat of a revocation sentence for illegally returning provides additional 

deterrence beyond that provided by the threat of a sentence for illegal re-entry in 

violation of 8 U.S.C. § 1326. United States v. Valdavinos-Torres, 704 F.3d 679, 

693 (9th Cir. 2012) (quoting United States v. Dominguez–

Alvarado, 695 F.3d 324, 329 (5th Cir. 2012)). If a case falls into that rare 
7 19-50207

exception, a court must give a “specific and particularized explanation that 

supervised release would provide an added measure of deterrence and protection 

based on the facts of [the defendant’s] case.” Id.

The district court’s error in imposing supervised release was plain because it 

contravened Valdavinos-Torres and the Guidelines. The district court did not give

the explanation Valdavinos-Torres requires as to why on the facts of this case the

narrow exception to the Guidelines’ advice against supervised release for deported

non-citizens applies.

The court did explain the terms of release (“Don’t come back again, period. 

Don’t come back,”), but did not acknowledge the deviation from the Guidelines or 

state a particularized reason for the supervised release. Although the Government 

contends that the court’s discussion about his concerns over Reyes’ immigration 

record and the failure of previous sentences to deter him were sufficient justification 

for the one-year term of supervised release, only terms of imprisonment, not 

supervised release, were referenced in that discussion. “[M]eaningful appellate 

review” requires an adequate explanation. Gall v. United States, 552 U.S. 38, 50 

(2007). 

The district court plainly erred in failing to explicitly justify its variance from 

the Guidelines by imposing supervised release. See Valdavinos-Torres, 704 F.3d at

693; Gall, 552 U.S. at 50.
8 19-50207

b. Substantial rights. “To show that the district court’s error affected [the 

defendant’s] substantial rights, [the defendant] must demonstrate ‘a reasonable 

probability that [she] would have received a different sentence’ if the district court 

had not erred.” United States v. Tapia, 665 F.3d 1059, 1061 (9th Cir. 2011) (internal 

citations omitted). Here, that standard is met. Reyes’ immigration history is not 

outside of the norm in illegal entry cases, and the district court reduced his sentence 

of imprisonment from the Guidelines’ minimum in the interest of sentencing Reyes 

like similarly situated individuals. Given that comparison, there is at least a 

reasonable likelihood that had the court specifically recognized the Guidelines’

advice regarding avoiding supervised release for deported non-citizens, it would

have treated Reyes’ case as “ordinary” and declined to vary upward from the 

Guidelines by imposing supervised release. Moreover, regarding the defendant’s 

burden to show prejudice, we have held in sentencing cases that “we will not reject 

[an] appeal because of the prejudice prong of plain error review” when there has 

been “a serious departure from established procedures.” Hammons, 558 F.3d at

1105 (emphasis omitted) (quoting United States v. Waknine, 543 F.3d 546, 554 (9th

Cir. 2008)). That principle informs our determination regarding the prejudice prong.

c. “Fairness” in Judicial Proceeding. As this court held in United States v.

Castillo-Casiano:

It is easy to see why prejudicial sentencing errors undermine the 

“fairness, integrity, and public reputation of judicial proceedings:” 
9 19-50207

such errors impose a longer sentence than might have been imposed 

had the court not plainly erred. Defendants . . . may be kept in jail for 

a number of years on account of a plain error by a court, rather than 

because their wrongful conduct warranted that period of incarceration. 

Moreover, there is little reason not to correct plain sentencing errors 

when doing so is so simple a task. . . . Reversing a sentence does not 

require that a defendant be released or retried, but simply allows a 

district court to exercise properly its authority to impose a legally 

appropriate sentence.

198 F.3d 787, 792 (9th Cir. 1999). Here, Reyes may not face the same level of 

fundamental unfairness that a lengthy prison sentence would present. The term of 

supervised release may have no effect on him if he abides by its term: that he not 

return to the United States. However, violations of supervised release can result in 

additional jail time. 18 U.S.C. § 3583(e)(3). Because “there is little reason not to 

correct plain sentencing errors when doing so is so simple a task,” Castillo-Casiano,

198 F.3d at 792, we vacate the imposition of supervised release and remand for 

resentencing consistent with this opinion.

The judgment of conviction is AFFIRMED; the term of supervised release is 

VACATED; and the case is REMANDED for resentencing.
United States v. Reyes, No. 19-50207

COLLINS, Circuit Judge, concurring in part and dissenting in part:

I concur in sections 1 and 2 of the memorandum disposition, which affirm 

Defendant-Appellant Walter Reyes’s conviction for felony illegal entry, after a 

previous conviction for illegal entry, in violation of 8 U.S.C. § 1325(a). But I 

dissent from section 3, which vacates the district court’s imposition of a term of

supervised release and remands for resentencing. As the majority notes, Reyes 

failed to object in the district court to the imposition of a term of supervised 

release, and so our review is only for plain error. In my view, there was no plain 

error, much less a prejudicial one that warrants resentencing. 

Section 5D1.1(c) of the U.S. Sentencing Guidelines provides that, in 

sentencing a defendant for any federal offense, the court “ordinarily” should not 

impose a term of supervised release (except as required by statute) if “the 

defendant is a deportable alien who likely will be deported after imprisonment.” 

The rationale behind this provision is that, “[i]f 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,” i.e., a prosecution for illegal 

entry or re-entry in violation of 8 U.S.C. § 1325 or § 1326. See U.S.S.G. § 5D1.1, 

Commentary, Application Note 5. But Application Note 5 to § 5D1.1 specifically 

states that a court should “consider imposing a term of supervised release on such a 

FILED

DEC 4 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

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.” Id.

Given that the rationale for § 5D1.1(c) is that the deterrent effect of a 

criminal prosecution under § 1325 or § 1326 makes supervised release of a 

deported alien unnecessary, the paradigmatic case for applying the exception in 

Application Note 5 is a case in which the defendant already has multiple prior 

convictions under those provisions. That is, of course, exactly this case. Having 

been previously deported in 2009, Reyes was convicted in 2010 of a felony 

violation of § 1326 in the Western District of Texas. He was given an eight-month 

sentence, followed by a one-year term of supervised release, and he then violated 

the terms of that supervised release by re-entering the U.S. in Arizona in early 

2012 after having been deported in September 2011. That led to his next 

conviction, this time for a misdemeanor violation of § 1325 in the District of 

Arizona in 2012, and he was given a six-month sentence. He was again deported 

in September 2013, but he again returned, leading to the current case, which is his 

third prosecution for illegal entry or re-entry. 

The district court, in sentencing Reyes, was obviously exasperated with 

Reyes’s recidivism. The court had an extended colloquy with both defense counsel 

and government counsel about Reyes’s multiple prior deportations and 

immigration convictions. The court expressed concern about “what message” 
3

Reyes got from his prior immigration prosecutions given that he got “less time for 

it two years later than he got the first time” and was convicted of a felony the first 

time but only of a misdemeanor the second time. As the court explained, “I’d be 

genuinely confused if I was Mr. Reyes. I’d think, what’s up with this? You 

commit the same offense, and they downgrade it and give you less time?” The 

court expressed frustration that the message was not getting through to Reyes: “I 

mean, he should stay out. We’ve told him three times, stay out, and he’s done two 

different jail stints on that.” In determining the sentence, the court emphasized that 

Reyes had not been sufficiently deterred by his prior prosecutions, stating: 

“Obviously, he was not deterred by the eight-month sentence. And it goes without 

saying he wasn’t deterred by the six-month sentence. So here we are, and he faces 

15 months” under the Guidelines. The court nonetheless agreed to vary from the 

Guidelines and to impose a 12-month term of incarceration, based solely on 

equalizing the sentence to “similarly situated offenders” in the district, but the 

court also imposed a one-year term of supervised release. And the court made 

quite clear why it was imposing that term of supervised release: “Mr. Reyes, the 

terms of supervised release are this: Don’t come back again, period. Don’t come 

back. If you come back within the one year, you’re going to go back to jail. And 

don’t violate any United States law.” 

Given this record, the majority is wrong in saying that the district court
4

plainly failed to give an adequate explanation for imposing a term of supervised 

release on Reyes. Application Note 5 says that a term of supervised release is 

appropriate if needed for added deterrence, and that was obviously the reason why 

the district court imposed it here, given that (1) the entire colloquy between the 

court and counsel at sentencing was focused on the fact that Reyes had not been 

adequately deterred, and (2) the district court explicitly said that the point of the 

supervised release term was to make clear that Reyes should not come back and 

would be promptly jailed if he did. Indeed, the self-evident nature of the district 

court’s rationale is further confirmed by the fact that, in asking the court for a 

sentence of straight probation, Reyes himself had argued that the prospect of a 

probation revocation should he return to the U.S. provided “a measure of added 

deterrence” against that happening. It is little wonder, then, that Reyes did not 

object to the term of supervised release at sentencing.

The majority nonetheless faults the district court because it did not expressly 

“acknowledge the deviation from the Guidelines” and did not explicitly mention 

“supervised release” during the colloquy about deterrence. See Mem. Dispo. at 7. 

This “Simons says” approach is directly contrary to controlling Ninth Circuit law. 

In United States v. Valdavinos-Torres, 704 F.3d 679, 692 (9th Cir. 2012), we 

“adopt[ed]” the “reasoning” of the Fifth Circuit in United States v. DominguezAlvarado, 695 F.3d 324, 328–30 (5th Cir. 2012), and we favorably noted that the 
5

Fifth Circuit upheld a term of supervised release against a deportable alien even 

though the district court there “did not focus on Section 5D1.1 in imposing” that 

term. Valdavinos-Torres, 704 F.3d at 693. Indeed, the district court’s explanation 

in Valdavinos-Torres itself likewise did not mention § 5D1.1. Moreover,

Dominguez-Alvarado further upheld, as sufficiently particularized, an explanation 

that the sentence was needed for deterrence, see 695 F.3d at 330, even though that 

explanation likewise did not explicitly reference “supervised release.” The 

majority’s magic-words rationale is especially inappropriate on plain-error review, 

where any failure to mention § 5D1.1, and to tie the court’s imposition of 

supervised release to it, is in large measure due to Reyes’s failure to raise the point.

In addition, any asserted error here did not affect Reyes’s substantial rights, 

because Reyes has failed to “show a reasonable probability that he would have 

received a different sentence” but for the claimed error. United States v. Dallman, 

533 F.3d 755, 762 (9th Cir. 2008). In reaching a contrary conclusion, the majority 

contends that the district court’s sentencing involved “‘a serious departure from 

established procedures,’” see Mem. Dispo. at 8 (citation omitted), but that is wrong 

for the reasons I have set forth above. The majority also vaguely hints that the 

imposition of supervised release here may have been substantively unreasonable, 

because “Reyes’ immigration history is not outside the norm in illegal entry cases.” 

See id. But the majority commits a serious legal error in assuming that 
6

§ 5D1.1(c)’s statement about what should “ordinarily” be done in sentencing 

deportable aliens is a statement that is specific to the sentencing of illegal entry 

offenses. By its plain terms, § 5D1.1(c) applies to the sentencing of a deportable 

alien for any federal offense. By instead recasting § 5D1.1(c) as a rule about how 

recidivist illegal re-entrants should “ordinarily” be sentenced, the majority 

improperly rewrites § 5D1.1(c) and larges guts Application Note 5. Once this legal 

error is set aside, it is apparent that Reyes has not shown the requisite “reasonable 

probability” that he would have received a different sentence had the district court 

specifically mentioned and addressed § 5D1.1(c). Because the prospect of a 

prosecution for illegal entry—which is the premise for § 5D1.1(c)’s statement that 

supervised release “ordinarily” should not be applied in sentencing deportable 

aliens—has been amply shown to have had no effect on Reyes, he is precisely the 

sort of person for whom Application Note 5 exists. Given that fact, and the fact 

that the district court made clear that it imposed supervised release in order to stop 

Reyes from returning to the U.S., any failure of the district court to give an 

additional on-the-record explanation made no difference here.

Finally, I cannot agree that a failure to require a resentencing in this case 

would “seriously affect[] the fairness, integrity or public reputation of judicial 

proceedings.” United States v. Olano, 507 U.S. 725, 736 (1993) (citation omitted). 

The majority invokes the principle that there is “little reason” not to err on the side 
7

of requiring resentencing “‘when doing so is a simple task,’” see Mem. Dispo. at 9

(citation omitted), but here it is not so simple. Reyes completed his term of 

incarceration in this case in mid-December 2019, and he has presumably already 

been deported back to Honduras. (Indeed, he may have mere weeks left on his 

term of supervised release.) Thus, Reyes would ironically have to be brought back 

to the U.S. for a resentencing at which the district court would then decide whether 

to impose a term of supervised release in order to make sure that he does not come 

back to the U.S. The difficulty of resentencing in this case is a good reason not to 

mandate the pointless formality that the majority requires. 

I respectfully dissent from the vacatur of Reyes’s term of supervised release. 

I would affirm the district court’s judgment in full.