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.) 

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ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, TYMKOVICH, and MORITZ, Circuit Judges. 

_________________________________ 

Ismael Serrano-Rodriguez appeals the district court’s imposition of supervised 

release as part of his sentence for violating 8 U.S.C. § 1326. Finding no reversible 

error, we affirm. 

 *

 After examining the briefs and appellate record, this 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, 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 Court
2 

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 raise this argument below, but asserts 

we can nonetheless review his sentence for plain error. Relying on United States v. 

Carrasco-Salazar, 494 F.3d 1270 (10th Cir. 2007), the government asserts SerranoRodriguez waived his right to appeal at sentencing when his counsel responded, “No, 

Your Honor” when asked, “[D]o you know of any legal reason why the sentence 

cannot be imposed as stated?” Sent. Hr’g Tr., Doc. 32, at 16.1

But by declining to object, Serrano-Rodriguez merely forfeited his challenge; 

he didn’t waive it. Compare Carrasco-Salazar, 494 F.3d at 1272-73 (concluding 

defendant waived previous objection by assuring district court that objection had 

been sufficiently addressed), with United States v. Harris, 695 F.3d 1125, 1130 n.4 

(10th Cir. 2012) (distinguishing between forfeiture and waiver and concluding 

defense counsel’s “affirmative statement, ‘No, Your Honor,’ 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 merely 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 objection had been resolved.”). 
3 

court’s query[,] ‘Any objection?,’” only forfeited defendant’s challenge to jury 

instruction). 

Because Serrano-Rodriguez forfeited his 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 show (1) an error, (2) that is plain, 

(3) that affects his substantial rights, and (4) that seriously 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 plain “only if it is 

‘clear or obvious under 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 argument, 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 acknowledged the likelihood that SerranoRodriguez would be deported after serving his prison sentence, it nevertheless 

ordered him to serve a three-year term of supervised release. But as SerranoRodriguez points out, 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 statute2

 and the defendant is a deportable 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 explain a deportable alien may be sentenced to 

supervised release “if the court determines it would provide 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 statement that the “ordinar[y]” sentence shouldn’t include 

supervised release for a deportable alien, Serrano-Rodriguez contends that imposing 

supervised release under these circumstances constitutes a departure from the 

Guidelines. Thus, he maintains, the district court should have explained why “the 

facts and circumstances of [the] 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 court “must give serious consideration to the extent of any 

departure from the Guidelines and must explain [its] conclusion that an unusually 

lenient or an unusually harsh sentence is appropriate in a particular case with 

sufficient justifications”). Because the district court didn’t comply with those 

requirements in this case, Serrano-Rodriguez argues, the district court committed a 

procedural error. 

But even if Serrano-Rodriguez is correct that the district court’s imposition of 

supervised release constituted a departure, he cites no controlling precedent 

establishing as much. Moreover, the Guidelines are not clearly and obviously limited 

to the interpretation he advances. In fact, at least three of our sister circuits have 

 
5 

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 deportable 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 obvious 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 establish the district court’s failure to 

make explicit findings violated clearly established law, we affirm. 

Entered for the Court 

Nancy L. Moritz 

Circuit Judge