IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40103

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

OMAR ARELLANO-GONZALEZ,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:11-CR-1184-1

Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

Omar Arellano-Gonzalez appeals the sentence imposed pursuant to his

guilty-plea conviction for illegal reentry into the United States after deportation. 

He contends: the sentence was substantively unreasonable because the district

court imposed a three-year term of supervised release without explanation,

notwithstanding that advisory sentencing Guideline § 5D1.1(c) states supervised

release should ordinarily not be imposed on a deportable alien; and the sentence

was procedurally unreasonable because the court provided no explanation for

United States Court of Appeals

Fifth Circuit

F I L E D

January 7, 2013

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 12-40103

imposing supervised release, and did not provide notice of its intent to depart

from the advisory Guidelines sentencing range.

Although post-Booker, the Sentencing Guidelines are advisory only, and

a properly-preserved objection to an ultimate sentence is reviewed for

reasonableness under an abuse-of-discretion standard, the district court must

still properly calculate the Guideline-sentencing range for use in deciding the

sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that

respect, for issues preserved in district court, its application of the Guidelines is

reviewed de novo; its factual findings, only for clear error. E.g., United States v.

Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas,

404 F.3d 355, 359 (5th Cir. 2005). As Arellano concedes, he failed to raise his

procedural-error contention in district court; therefore, review is only for plain

error. United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007). To show

reversible plain error, Arellano must show, inter alia, forfeited error that was

clear or obvious. Puckett v. United States, 556 U.S. 129, 135 (2009). He fails to

do so.

The term of supervised release imposed on Arellano was within the

statutory and advisory Guidelines sentencing range for his offense of conviction;

therefore, despite the language of Guideline § 5D1.1(c), it does not trigger a

“departure analysis”. See United States v. Dominguez-Alvarado, 695 F.3d 324,

329 (5th Cir. 2012). Therefore, the court was not required to give notice of its

possibly imposing supervised release. See id.

Further, the district court was aware of the provisions of Guideline

§ 5D1.1(c) because they were set out in the presentence investigation report,

which the court adopted. Given the court’s considering at sentencing both

Arellano’s request for a lenient sentence and his violent criminal history and

alcohol-abuse problems, Arellano fails to show the district court procedurally

erred in declining to explain its imposing supervised release. See id. at 329-30. 

Indeed, Guideline § 5D1.1, comment 3(C), states “it is highly recommended that

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No. 12-40103

a term of supervised release [] be imposed” where, as here, defendant has a

history of drug or alcohol abuse. 

Arguably, Arellano’s contention that the imposition of supervised release

is substantively unreasonable was not properly preserved and,therefore, subject

to plain-error review. In any event, under the more lenient abuse-of-discretion

standard, the contention fails. Because the supervised release was within the

advisory Guidelines sentencing range, our court applies a presumption of

reasonableness and infers the district court considered all pertinent sentencing

considerations in imposing the sentence. United States v. Mares, 402 F.3d 511,

519 (5th Cir. 2005) (“When the judge exercises [his] discretion to impose a

sentence within the [advisory] Guidelines [sentencing] range and states for the

record that [he] is doing so, little explanation is required.”).

AFFIRMED.

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