# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued November 1, 2018

Decided December 20, 2018

Before

DIANE P. WOOD, Chief Judge

DANIEL A. MANION, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

No. 18

‐ 1184

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v

.

BALTAZAR JUAN

‐ BALTAZAR,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Central District of Illinois.

2:17

‐ cr

‐ 20045

Colin S. Bruce,

J udge

.

O R D E R

Baltazar Juan

‐ Baltazar is a Guatemalan national. In 2010, he was removed from

the United States after being convicted of embezzlement. At some point thereafter, he

illegally reentered the United States. In 2017, he was convicted in Illinois of driving

under the influence. After serving his sentence for that crime, he found himself in the

custody of U.S. Immigration and Customs Enforcement (ICE).

The federal government charged Juan

‐ Baltazar with illegally reentering the

country after a prior deportation. He pleaded guilty, and the district court sentenced

him to 12 months and a day of imprisonment and 1 year of supervised release. Juan

‐ NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 18

‐ 1184 Page 2

Baltazar, whom we presume the government has removed to Guatemala, 1 now appeals

the imposition of that term of supervised release. We affirm the sentence.

Juan

‐ Baltazar’s Pre

‐ Sentence Report (PSR) recommended the imposition of 1 year

of supervised release, the statutory maximum for his crime. The Probation Office cited

Juan

‐ Baltazar’s prior deportation and reentry to support its conclusion that requiring

Juan

‐ Baltazar to report to the Probation Office “is an appropriate tool should he again

return to the United States without authority.”

Juan

‐ Baltazar objected to the imposition of any term of supervised release.

Chapter 5 of the Guidelines provides as follows: “The 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). Application Note 5 to that section explains

why this is the rule: “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.” U.S.S.G. § 5D1.1 cmt. n.5. A “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.

The parties and the court engaged at length on the issue of supervised release

during Juan

‐ Baltazar’s sentencing hearing. When the issue of supervised release first

came up, the court noted it had not been imposing supervised release on deportable

defendants. But the court also mentioned that it was considering changing this practice.

In the court’s mind, if a deportable defendant was for some reason released from prison

back into the general population rather than deported, being on supervised release

would help ensure “that nobody re

‐ arrests him.” Juan

‐ Baltazar’s counsel opposed this

rationale, suggesting it was unlikely that Juan

‐ Baltazar would not be deported after

release from prison. The court overruled Juan

‐ Baltazar’s objection, announcing it would

adopt the Probation Office’s position.

1 The government informs us that Juan

‐ Baltazar was released from the custody of the Bureau of Prisons

on July 20, 2018, and as of August 31, 2018, Juan

‐ Baltazar was in an ICE detention center awaiting

removal to Guatemala. At oral argument on November 1, 2018, Juan

‐ Baltazar’s counsel expressed he had

no reason to believe that removal has not occurred.No. 18

‐ 1184 Page 3

The court ultimately adopted the entirety of the PSR. When the parties made

their arguments concerning an appropriate sentence, Juan

‐ Baltazar’s counsel again

resisted the imposition of a term of supervised release, stating it would not be “a favor”

to Juan

‐ Baltazar and that he would still be subject to prosecution.

The court announced a sentence of 12 months and a day of imprisonment and 1

year of supervised release. When imposing the term of supervised release, the court

stated its concern that Juan

‐ Baltazar would be “out and not [be] deported and [be] here

in the district with no supervision by the Court on him.” Juan

‐ Baltazar appeals the

imposition of the term of supervised release. He argues the district court misapplied the

supervised

‐ release Guideline.

We need not decide whether the district court’s reasoning strayed into error

because we are convinced that, even if it did, any such error was harmless. An error at

sentencing is harmless when “the government [is] able to show that [the error] did not

affect the district court’s selection of the sentence imposed.” United States v. Clark

, 906

F.3d 667, 671 (7th Cir. 2018) (internal quotation marks omitted) (second alteration in

original) (quoting United States v. Abbas

, 560 F.3d 660, 667 (7th Cir. 2009)). The fact that

convinces us of the harmlessness of any error is the district court’s decision to adopt the

Probation Office’s position in the PSR. While the court may have entertained some

irrelevant factors when considering supervised release, the Probation Office focused on

the circumstances of this case. Though the PSR does not elaborate on why requiring

Juan

‐ Baltazar to report would be a “useful tool,” the reasoning is apparent enough. The

Probation Office pointed to Juan

‐ Baltazar’s prior deportation and reentry as the basis

for its recommendation. Juan

‐ Baltazar is not just a “deportable alien.” He is a

deportable alien who has already once illegally reentered the country after deportation.

Juan

‐ Baltazar’s illegal entry into the United States after being deported revealed the

deterrent effect of the threat of prosecution had not been sufficient. Supervised release

would add an additional layer of deterrence. See United States v. Heredia

‐ Holguin

, 823

F.3d 337, 340–41 (5th Cir. 2016) (en banc) (recognizing “a term of supervised release

could have a ‘deterrent’ effect”). The court’s decision to adopt the Probation Office’s

position and findings implies agreement. See United States v. Bauer

, 129 F.3d 962, 966

(7th Cir. 1997) (“The requirement to articulate specific findings may be satisfied by

adopting the findings contained in the PSR.”); United States v. Herrera

, 948 F.2d 1046,

1049 (7th Cir. 1991) (“[G]iven the district court’s express reliance on the government’s

analysis of the offense contained in the presentence report, any error committed by

referring to [a codefendant’s] sentencing hearing was harmless at best.”). That

agreement controls the outcome. We AFFIRM.