IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-50033

c/w No. 12-50042 

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DESIDERIO OROZCO-SANTOS,

Defendant-Appellant

Appeals from the United States District Court

for the Western District of Texas

USDC No. 1:10-CR-400-1

USDC No. 1:11-CR-553-1

Before STEWART, Chief Judge, and OWEN and GRAVES, Circuit Judges.

PER CURIAM:*

Desiderio Orozco-Santos (Orozco) appeals the sentence imposed upon his

guilty plea to illegal reentry. See 8 U.S.C. § 1326. The district court sentenced

him within the Sentencing Guidelines to 21 months of imprisonment, to be

followed by three years of supervised release. The sentence was ordered to run

consecutively to the 12-month sentence imposed, at the same sentencing

United States Court of Appeals

Fifth Circuit

F I L E D

January 24, 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. 12-50033

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hearing, upon revocation of Orozco’s supervised release from a prior illegal

reentry conviction and sentence. Orozco does not challenge the 12-month

revocation sentence.

As of November 1, 2011, § 5D1.1(c) of the Guidelines provides that

“ordinarily,” the district court “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.” 

The commentary explains that the court “should . . . 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.” § 5D1.1, comment. (n.5).

Orozco argues that the district court erred in imposing a term of

supervised release given that he is likely to be removed to Guatemala upon his

release from imprisonment. Instead of simply relying on “the guidelines,” as he

did in the district court when he objected, Orozco cites on appeal the sentencing

factors in § 3553(a), his inability to benefit from the rehabilitation aspect of

supervised release, and the district court’s alleged intent to punish him for a

subsequent illegal reentry if he returns. The record does not reflect that the

district court was alerted to those arguments or that it was able to respond

specifically to those arguments. See United States v. Dominguez-Alvarado, 695

F.3d 324, 327-28 (5th Cir. 2012). Plain error review is therefore applicable. See

id. However, even if it was not applicable, Orozco still could not prevail under

the less stringent reasonableness review. See Gall v. United States, 552 U.S. 38,

51 (2007). 

To show plain error, Orozco must show a forfeited error that is clear or

obvious and that affects his substantial rights. See Puckett v. United States, 556

U.S. 129, 135 (2009). If he makes such a showing, we have the discretion to

correct the error but only if it seriously affects the fairness, integrity, or public

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reputation of judicial proceedings. See id. Under the reasonableness standard,

this court first reviews the procedural reasonableness of the sentence. Absent

procedural errors, this court reviews the substantive reasonableness of the

sentence under a deferential abuse of discretion standard, taking into account

the totality of the circumstances. Gall, 552 U.S. at 51; United States v. CisnerosGutierrez, 517 F.3d 751, 764 (5th Cir. 2008). 

At the sentencing hearing, the district court noted that Orozco’s criminal

history began in 1992 with theft and revealed almost 20 years of being a thief. 

The district court noted further that the United States had been unable to

prevent Orozco from coming back. In overruling defense counsel’s objection to

the supervised release term, the district court stated, “This is a classic case as

to why supervised release needs to be maintained.”

The district court’s statements at sentencing adequately explained why

supervised release would provide “an added measure of deterrence and

protection.” See Dominguez-Alvarado, 695 F.3d at 330. Accordingly, Orozco has

not shown error, plain or otherwise. See id.

AFFIRMED.

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