UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ISMAEL SERRANO-RODRIGUEZ, a/k/a Ismael Rodriguez Serrano, a/k/a Ismael Serrano Rodriguez, a/k/ a Mejel J. Serrano, a/k/a Jose Rodriguez Orozco, a/k/a Rodriguez Ismael Serrano, a/k/a Michael Rodriguez Serrano, a/k/a Ismael Serrano, Defendant - Appellant. No. 15-5027 (D.C. No. 4:14-CR -00165-CVE-1) (N.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , TYMKOVICH , and MORITZ , Circuit Judges.

________________ _________________ Ismael Serrano-Rodriguez appeals the di strict court’s imposition of supervised release as part of his sentence for viola ting 8 U.S.C. § 1326. Finding no reversible error, we affirm.

* After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cited, howev er, for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### September 21, 2015
Elisabeth A. Shumaker Clerk of Court2 In 2014, Serrano-Rodriguez pled guilty to being found in the United States after his 2012 deportation. See 8 U.S.C. § 1326(a). The district court imposed a 37- month prison sentence and three years of supervised release. Although SerranoRodriguez didn’t object below, he now argues the district court’ s decision to impose supervised release was procedurally unreasonable because the court failed to adequately explain its rationale for doing so under Gall v. United States , 552 U.S. 38 (2007). Serrano-Rodriguez concedes he did not ra ise this argument be low, but asserts we can nonetheless review his sent ence for plain error. Relying on United States v. Carrasco-Salazar , 494 F.3d 1270 (10th Cir. 2007), the government as serts SerranoRodriguez waived his right to appeal at sentencing when his c ounsel responded, “No, Your Honor” when asked, “[D]o you know of any legal reason why the sentence cannot be imposed as stated?” Se nt. Hr’g Tr., Doc. 32, at 16. 1 But by declining to object, Serrano-Rodr iguez merely forfeited his challenge; he didn’t waive it. Compare Carrasco-Salazar , 494 F.3d at 1272-73 (concluding defendant waived previous objection by as suring district court that objection had been sufficiently addressed), with United States v. Harris , 695 F.3d 1125, 1130 n.4 (10th Cir. 2012) (d istinguishing between forfeitur e and waiver and concluding defense counsel’s “affirmativ e statement, ‘No, Your Ho nor,’ in response to the

1 Again relying on Carrasco-Salazar , the government also asserts SerranoRodriguez invited any error. But in Carrasco-Salazar , we explicitly distinguished between inviting an error and me rely withdrawing an objection. See 494 F.3d at 1272 (“Here, however, the defendant did not actually invite the alleged error; he merely stated that his prior objec tion had been resolved.”).3 court’s query[,] ‘Any objection?,’” only forfe ited defendant’s challenge to jury instruction). Because Serrano-Rodriguez forfeited hi s supervised-release argument, we review for plain error. United States v. Romero , 491 F.3d 1173, 1178 (10th Cir. 2007). To prevail, Serrano-Rodriguez must s how (1) an error, (2 ) that is plain, (3) that affects his substan tial rights, and (4) that seri ously affects the fairness, integrity, or public reputation of the judicial proceedings. United States v. GonzalezHuerta , 403 F.3d 727, 732 (10th Cir. 2005) (en banc ). An error is pl ain “only if it is ‘clear or obvious und er current law.’” United States v. Poe , 556 F.3d 1113, 1129 (10th Cir. 2009) (quoting United States v. Kelly , 535 F.3d 1229, 1238 (10th Cir. 2008)). Serrano-Rodriguez can establish plain error by citing controlling authority directly supporting his argumen t, or by showing that the Guidelines are “‘clearly and obviously . . . limited’ to the interpretation [he] advocates.” Id. (quoting United
States v. Brown , 316 F.3d 1151, 1158 (10th Cir. 2003)). Although the district court acknow ledged the likelihood that SerranoRodriguez would be deported after servi ng his prison sentence, it nevertheless ordered him to serve a three-year term of supervised release. But as SerranoRodriguez points out, the Guidelin es 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 2 and the defendant is a deporta ble alien who likely will be

2 Supervised release is not required by statute for an alien found in the United States after deportation. See 8 U.S.C. § 1326(b); 18 U.S.C. § 3583.4 deported after imprisonment.” U.S.S.G. § 5D1.1(c) (emphasis added). Instead, the application notes following § 5D1.1 explai n a deportable alien may be sentenced to supervised release “if the court determines it would pr ovide an added measure of deterrence and protection based on the facts and circumstances of a particular case.” U.S.S.G. § 5D1.1 cmt. n.5. Given § 5D1.1(c)’s statem ent that the “ordinar[y]” sentence shouldn’t include supervised release for a deportable alien, Serrano-Rodriguez cont ends that imposing supervised release under these circumst ances constitutes a departure from the Guidelines. Thus, he maintain s, the district court shoul d have explained why “the facts and circumstances of [t he] particular case” separate it from the “ordinar[y]” scenario contemplated by § 5D1.1(c). See § 5D1.1 cmt. n.5; Gall , 552 U.S. at 46 (explaining that district cour t “must give serious consider ation to the extent of any departure from the Guidelines and must ex plain [its] conclusion that an unusually lenient or an unusually hars h sentence is appropriate in a particular case with sufficient justifications”). Because the district court didn’t comply with those requirements in this case, Se rrano-Rodriguez argues, the district court committed a procedural error. But even if Serrano-Rodriguez is correct that the district c ourt’s imposition of supervised release constituted a depart ure, he cites no controlling precedent establishing as much. Moreove r, the Guidelines are not clearly and obviously limited to the interpretation he advan ces. In fact, at least three of our sister circuits have5 come to the opposite conclusion. See United States v. Alvarado , 720 F.3d 153, 158 (2d Cir. 2013) (holding Gall ’s departure analysis is not required when district court elects to impose supervised release for de portable alien, notwithstanding “ordinarily” language of § 5D1.1(c)); United States v. Valdavinos-Torres , 704 F.3d 679, 693 (9th Cir. 2012) (same); United States v. Dominguez-Alvarado , 695 F.3d 324, 329 (5th Cir. 2012) (same). Thus, even if we assume Serrano-Rodriguez has demonstrated a procedural error, that error is not clear and ob vious under current law. See Poe , 556 F.3d at 1129. Serrano-Rodriguez’s failure to satisfy the second step of our plain-error test is fatal to his argument. Thus, we need not address whether he can satisfy the remaining steps. See United States v. Algarate-Valencia , 550 F.3d 1238, 1243 n.3 (10th Cir. 2008). Because Serrano-Rodriguez fails to es tablish the district court’s failure to make explicit findings violated clea rly established law, we affirm.

Entered for the Court

Nancy L. Moritz Circuit Judge