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

No. 12-20146 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. EDUARDO MURO-FLORES, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:11-CR-795-1

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM: * Eduardo Muro-Flores a ppeals t he s entence imposed following his guilty plea conviction for being an alien found unlawfully present in the United States following dep o r t ation. The district court s entenced Muro-Flores to 64 months of imprisonment to be followed by a two-year term of supervised release. Muro-Flores a rgues for the f i rst time on appeal t h a t the s entence was procedurally and substantively unreasonable because the district court imposed

a term o f supervised release despite the Sentencing Guidelines’ direction that 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 February26, 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

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“ordinarily” no term of supervised release should be imposed if the defendant is

a deportable alien. H e specifically contends that the sentence w as procedurally unreasonable because the district court gave an inadequate explanation for imposing a term o f s upervised release, relied upon the prohibited factor of punishment in deciding to impose supervised release, and did not provide him with prior notice of its i ntent to depart f rom the guidelines range. Muro-Flores alleges that his s entence i s s ub s t a ntiv e ly u nr e a sonable because the district court did n ot account for the Guidelines’ recommendation that supervised release not be imposed and g ave improper weight to the prohib i t e d factor of punishment. Because Muro-Flores failed to r aise these objections in the district court,

our review is limited to plain error. See United States v. Dominguez-Alvarado , 695 F.3d 324, 3 27 ( 5th C ir. 2012). To show plain error, Muro-Flores must show

a forfeited error that is clear or obvious and that affects his substantial rights. See Pu c k e t t 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 only if it s eriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. The term of supervision imposed on M uro-Flores was within t he s tatutory and guidelines range for his offense of conviction; therefore, it did not trigger a “departure analysis.” See Dominguez-Alvarado , 695 F.3d at 329. Muro-Flores’s contention that the dist r i c t c o u r t was r equired t o give notice o f i ts d e parture from the Guidelines thus fails. See id. Our review of the record reveals that the district court considered relevant facts that justified a term o f supervised release. The presentence report alerted the district court to the 2011 amendment to U.S.S.G. § 5D1.1(c), as well as the hi s t o ry a n d c h ar a c t eristics of the defendant, and t he district court considered the information in the presentence report along with the arguments of t he parties. The district court’s comments at sentencing evince its concern with t he need for deterrence and protection in light of Muro-Flores’s history and character i s t ics rather than a concern with imposing just punishment; deterrence and protection
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are permissible factors that are relevant to a determination whether to impose

a term of supervised release. See Dominguez-Alvarado, 695 F.3d at 329. Thus, Muro-Flores has not shown tha t t h e district court c ommitted reversible plain error in imposing the supervised release term. See Puckett , 556 U.S. at 135. Muro-Flores’s argument that his s entence is substantively unreasonable also lacks merit. B ecause the supervised release term was within the guidelines range, the court applies a presumption of rea s o n a b l e n ess a nd i nfers that the district court considered all p ertinent sentencing considerations in i mposing the sentence. See U

nited States v. Mares , 4 02 F.3d 511, 519 (5th Cir. 2005). The record shows that the district court was aware of § 5D1.1(c), and did not give significant weight t o t h e i mproper factor of punishment i n opting to i mpose a two-year term o f supervised release. Thus, Muro-Flores has not d emonstrated, under the applicable p lain error standard, that h i s s entence was substantively unreasonable. Puckett , 556 U.S. at 135. The sentence is AFFIRMED.

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