PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

MANUEL CHAVEZ-MORALES, 

 Defendant - Appellant. 

No. 17-2124 

_________________________________ 

Appeal from the United States District Court 

for the District of New Mexico 

(D.C. No. 2:16-CR-04013-WJ-1)

_________________________________ 

John V. Butcher, Assistant Federal Public Defender (Michael A. Keefe, Assistant Federal 

Public Defender on the briefs), Albuquerque, New Mexico, for Defendant – Appellant. 

Paul J. Mysliwiec, Assistant United States Attorney (James D. Tierney, Acting United 

States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff – 

Appellee. 

_________________________________ 

Before MATHESON, McKAY, and McHUGH, Circuit Judges. 

_________________________________ 

McHUGH, Circuit Judge. 

_________________________________ 

Manuel Chavez-Morales appeared before the district court following his fifth 

conviction for an illegal reentry offense. At sentencing, Mr. Chavez-Morales argued 

that higher wages in the United States motivated his decision to illegally reenter the 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 3, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

United States. Focusing heavily on Mr. Chavez-Morales’s criminal history and noting 

that none of the earlier sentences deterred Mr. Chavez-Morales from reoffending, the 

district court imposed an upward variant sentence of thirty-six months’ 

imprisonment. The district court also imposed a three-year term of supervised 

release.1

On appeal, Mr. Chavez-Morales challenges the procedural reasonableness of 

his term of imprisonment. Specifically, he contends the district court did not 

meaningfully consider his argument that economic opportunities motivated his 

decision to illegally reenter the United States and thereby mitigated the seriousness 

of his offense. Mr. Chavez-Morales separately contends the district court committed 

plain error by imposing a term of supervised release without acknowledging or 

considering United States Sentencing Guidelines Manual (U.S.S.G.) § 5D1.1(c), 

which states a court “ordinarily” should not impose a term of supervised release 

when “the defendant is a deportable alien who likely will be deported after 

imprisonment.” 

We affirm the district court’s judgment. As to Mr. Chavez-Morales’s term of 

imprisonment, the transcript of the sentencing hearing establishes that, on three 

occasions, the district court addressed Mr. Chavez-Morales’s economic motivation 

argument. As to the imposition of a term of supervised release, while the district 

 1

 The term of supervised release was, in fact, “unsupervised with mandatory 

and standard conditions” and the special condition that Mr. Chavez-Morales “not 

illegally re-enter the United States.” ROA Vol. 3 at 30. Although Mr. ChavezMorales was not subject to supervision, for ease of reference, we refer to the term as 

a term of supervised release. 
3 

court erred by not acknowledging and considering U.S.S.G. § 5D1.1(c), Mr. ChavezMorales has not carried his burden on the third prong of the plain error analysis. 

I. BACKGROUND 

A. Mr. Chavez-Morales’s History, Characteristics, & Offense Conduct

Mr. Chavez-Morales, age fifty-six at the time of his most recent offense, is a 

citizen of Mexico. As a result of his family’s financial struggles, Mr. ChavezMorales entered the work force at a young age. By the 1980s, Mr. Chavez-Morales 

lived in the United States. According to records obtained by probation services, Mr. 

Chavez-Morales was the subject of an order of removal issued in 1986. Whether the 

order of removal was executed is not clear, but Mr. Chavez-Morales was present in 

the United States in the mid and late 1990s, as is evident by four Colorado 

convictions. By January 2000, however, Mr. Chavez-Morales had returned to 

Mexico. 

On January 30, 2000, Mr. Chavez-Morales was detained when trying to enter 

the United States with fifty-three pounds of marijuana. He was deported in August 

2000. In June 2002, Mr. Chavez-Morales returned to the United States, resulting in a 

conviction for reentry of a deported alien previously convicted of an aggravated 

felony, for which he incurred a sentence of twenty-four months’ imprisonment, 

followed by three years’ unsupervised release. Mr. Chavez-Morales was deported in 

March 2004. In December 2006, Mr. Chavez-Morales attempted to cross into the 

United States, presenting fraudulent documents to Border Patrol agents at a port of 

entry. Mr. Chavez-Morales pleaded guilty to the offense of illegal reentry and 
4 

incurred a sentence of thirty-seven months’ imprisonment, followed by two years’ 

unsupervised release. Mr. Chavez-Morales was deported in September 2009. In June 

2011, Border Patrol agents found Mr. Chavez-Morales in the United States, which 

resulted in Mr. Chavez-Morales’s third illegal reentry conviction, for which he 

incurred a sentence of twenty months’ imprisonment. Mr. Chavez-Morales was 

deported in November 2012. In March 2015, Border Patrol agents, once again, found 

Mr. Chavez-Morales in the United States, leading to Mr. Chavez-Morales’s fourth 

illegal reentry conviction, for which he incurred a sentence of eighteen months’ 

imprisonment.2

 Mr. Chavez-Morales was deported on July 13, 2016. On August 19, 

2016, roughly one month after being deported, Mr. Chavez-Morales was found in the 

United States, leading to the reentry of a removed alien conviction underlying the 

present appeal. 

B. Plea & Sentencing Proceedings

Mr. Chavez-Morales and the government negotiated a fast-track plea 

agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) and U.S.S.G. 

§ 5K3.1. The fast-track plea agreement estimated a Sentencing Guidelines range of 

nine to fifteen months and, if accepted by the district court, would have obligated the 

court to impose a within-Guidelines sentence. Focusing on Mr. Chavez-Morales’s 

history of reentry offenses and the need to impose a sentence that would satisfy the 

 2

 In total, Mr. Chavez-Morales’s four prior illegal reentry convictions resulted 

in sentences totaling ninety-nine months’ imprisonment and in Mr. Chavez-Morales 

serving, seven years, two months, and eleven days in prison or immigration detention 

awaiting deportation. 
5 

18 U.S.C. § 3553(a) factors, including adequately deterring Mr. Chavez-Morales, the 

district court rejected the fast-track plea agreement. The district court indicated, 

however, that if Mr. Chavez-Morales entered into a non-fast-track plea agreement, a 

within-Guidelines sentence would likely satisfy the § 3553(a) factors.3

 But, a month 

after rejecting the fast-track plea agreement, the district court informed the parties 

that even if Mr. Chavez-Morales entered into a non-fast-track plea agreement with a 

Guidelines range of twenty-one to twenty-seven months’ imprisonment, the district 

court might vary upwards. The district court granted Mr. Chavez-Morales’s motion to 

formally withdraw the guilty plea he entered pursuant to the fast-track plea 

agreement. Thereafter, a grand jury indicted Mr. Chavez-Morales on one count of 

illegal reentry by a removed alien after deportation subsequent to a conviction for an 

aggravated felony, in violation of 8 U.S.C. §§ 1326(a), (b). Mr. Chavez-Morales then 

entered a straight-up guilty plea, without a written plea agreement. 

Based on a total offense level of ten and a criminal history category of V, a 

presentence investigation report (“PSR”) established a Guidelines range of twentyone to twenty-seven months’ imprisonment. See U.S.S.G. ch. 5 pt. A (sentencing 

table). Relying on Mr. Chavez-Morales’s 8 U.S.C. §§ 1326(a)(1), (b)(2) offense 

being a Class C felony, the PSR established a Guidelines range for supervised release 

of one to three years. However, the PSR noted that “[p]ursuant to U.S.S.G. 

 3

 Under U.S.S.G. § 5K3.1, a defendant who enters into a fast-track plea 

agreement may receive up to a four-level reduction to his offense level. Under the 

negotiated fast-track plea agreement, Mr. Chavez-Morales was to receive the full 

four-level reduction so long as he had not previously sustained a conviction for a 

serious violent felony and did not have a criminal history category of VI. 
6 

§ 5D1.1(c), 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.” ROA Vol. 2 at 29. 

Neither the Government nor Mr. Chavez-Morales objected to the Guidelines 

calculations in the PSR, and the district court adopted the factual findings and 

Guidelines calculations set out in the PSR. 

The government advocated for an upward variant sentence of thirty-eight 

months’ imprisonment, arguing that Mr. Chavez-Morales’s longest previous sentence 

of thirty-seven months did not adequately deter him from reentering the United 

States. Mr. Chavez-Morales argued for a within-Guidelines sentence, highlighting his 

good work ethic while in detention awaiting sentencing, his plan to open a taqueria in 

Mexico after deportation, and his economic motivation for illegally reentering the 

United States. When Mr. Chavez-Morales’s counsel compared the wages Mr. 

Chavez-Morales could earn in Mexico to the hourly wages in the United States, the 

district court interjected and the following colloquy occurred: 

[COUNSEL:] . . . He came back here every time, Your Honor, to have 

opportunities. I think I’ve set forth in the Sentencing Memorandum the 

amount of money he was making when he worked in Mexico, something 

like $7 a day, and he can come over here and make in the range of $15 an 

hour doing the same kind of work. 

THE COURT: How much is he making in prison? 

[COUNSEL]: Nothing. 

THE COURT: Well, you get a little bit. 

[COUNSEL]: A dollar a day, or whatever it is, yes. 

THE COURT: It’s less than what he can make in Mexico; is that 

right? 

[COUNSEL]: Yes. The Court is right, over the last 15 years he’s 

spent 8 years, more than half of that, locked up. So again, this seems to be a 
7 

part of—it should become very clear. What’s very clear to all of us should 

become very clear to Mr. Chavez-Morales, and we hope that it does. 

ROA Vol. 3 at 19–20. 

 The district court commenced announcing its sentence by reciting the 18 U.S.C. 

§ 3553(a) factors, placing emphasis on the need to promote respect for the law and the 

need to adequately deter Mr. Chavez-Morales. See 18 U.S.C. § 3553(a)(2)(A), (B). In 

discussing the need to promote respect for the law, the district court stated: 

Now, to promote respect for the law. You can’t help but look at this 

Presentence Report and come to the conclusion that the Defendant has no 

respect for the laws of the United States. I mean, I’m going to cite the fact 

that in the prior re-entry case, he was deported to Mexico on July the 13th, 

2016, and that’s referenced in Paragraph 29 of this Presentence Report 

where he was given 18 months custody, and then he was arrested again in 

the United States on August the 19th, 2016. So that’s just a little more than 

one month after he’s deported, he is arrested on this matter. 

 Now, in the second Sentencing Memorandum, [counsel for Mr. 

Chavez-Morales] talked about the wages and the money that he can make 

here in the United States compared to what he can make in Mexico, but 

obviously to me he didn’t really give it a shot in Mexico, because he was 

deported on July 13, 2016, and he’s arrested within a little more than 30 

days here. So that just tends to ring hollow and just comes back to the point 

that he didn’t really try to make a go of it there.

ROA Vol. 3 at 25–26 (emphasis added). At this point, counsel for Mr. Chavez-Morales 

interjected, stating that “the incentive was so strong to come back based on what he knew 

he could earn. I don’t think things had changed that much in Mexico [during his last 

prison sentence].” Id. at 26. To which, the district court responded: 

I mean, I get that. I understand that wages in general are lower. But then 

you come back to, as much time as he’s served in prison in the United 

States, he could be making more if he was living and working in Mexico. 

Other than he gets a small inmate account at the detention facility, they’re 

not paying in detention what he could be earning in Mexico. So, again, it 
8 

comes back as a complete and total lack of respect for the laws of the 

United States. 

Id. The district court then discussed specific deterrence, noting that none of Mr. ChavezMorales’s four prior sentences deterred him from reentering the United States. In 

discussing the need for specific deterrence, the district court harkened back to its earlier 

conclusion that Mr. Chavez-Morales’s conduct evidenced a lack of respect for the laws of 

the United States. Mr. Chavez-Morales’s counsel interjected again, and the following 

interchange occurred: 

[COUNSEL]: Your Honor, if I could just say, on the lack of respect 

for the law, I would just say, I don’t think—on paper, clearly it appears 

total lack of respect for the law. But it’s not a situation where I think Mr. 

Chavez-Morales is thumbing his nose and saying, hey—I don’t think that’s 

the thought process that goes into this. 

I think the incentive is to come back to the United States, and again, 

I think it is more of an economic driven decision than it is sort of, you 

know, I don’t care what their laws are. . . . 

So I understand why the Court would say that. It makes sense in 

terms of the way you look at things on paper. I’m just saying, in terms of 

knowing Mr. Chavez-Morales over these past several months and working 

with him, I don’t think that’s really his attitude. 

THE COURT: Well, I’ll accept your representation that he doesn’t 

have a subjective intent that would indicate a lack of respect, but if you 

look at his conduct objectively, it clearly would suggest a lack of respect if 

for no other reason than that after being told you’re not going to be 

authorized to come here legally, you know, he’s back in the United States a 

little over 30 days after he’s deported on the previous re-entry conviction. 

And again, I could understand it if maybe that was the first go-around, but 

again, this is—is it the fourth or the fifth re-entry? This is the fifth re-entry 

conviction. 

So, you know, you get at least from a sentencing judge’s standpoint, 

you get to a point where you say, enough is enough. And I don’t know what 

else to do except impose a sentence that, again, satisfies the goals of 

sentencing, and is sufficient but not greater than necessary to satisfy those 

goals. 

Id. at 28–29. 
9 

The district court then announced its sentence. Although inclined to impose a 

48-month sentence, the district court credited Mr. Chavez-Morales’s good behavior and 

work ethic while awaiting sentencing and settled on a sentence of thirty-six months’ 

imprisonment. On the matter of supervised release, the district court stated: 

After service of the sentence, the Defendant is placed on supervised release 

for a term of three years. The term is unsupervised with mandatory and 

standard conditions, and the following special condition. The Defendant 

shall not illegally re-enter the United States. And I hope this time around 

the Defendant will listen to what I’m telling him, and listen to what his 

lawyer told him. You will never, ever be authorized to come to the United 

States legally. So unless you want to essentially spend the rest of your life 

sitting in a U.S. prison cell, I strongly recommend that after you serve this 

sentence and you’re deported, you never return to the United States. 

Id. at 30. Mr. Chavez-Morales did not object to the term of imprisonment or to the term 

of supervised release. 

II. DISCUSSION 

A. Term of Imprisonment

On appeal, Mr. Chavez-Morales argues that the district court failed to 

“meaningfully consider” his argument that his economic motivation for illegally 

reentering the United States mitigated the seriousness of his offense. Mr. ChavezMorales contends that this failing on the part of the district court amounted to 

procedural error because the district court imposed an upward variant sentence 

without adequately addressing one of Mr. Chavez-Morales’s arguments for a lower 

sentence. The government contends that Mr. Chavez-Morales, by not objecting to the 

adequacy of the district court’s consideration of and response to his economic 

motivation argument, did not preserve the issue for appellate review and that, if we 
10 

review the argument, we should do so under a plain error standard. In reply, Mr. 

Chavez-Morales argues for an abuse of discretion standard of review but, 

alternatively, presents an argument under the plain error standard. We discuss the 

appropriate standard of review before turning to the merits of Mr. Chavez-Morales’s 

argument that the district court committed procedural error. 

1. Standard of Review 

United States v. Gantt, 679 F.3d 1240 (10th Cir. 2012), provides guidance 

regarding the standard we apply to review Mr. Chavez-Morales’s procedural error 

argument. In Gantt, the defendant filed a sentencing memorandum raising several 

arguments counseling against the above-Guidelines sentence the district court 

indicated it was prepared to impose. 679 F.3d 1244, 1247. Mr. Gantt renewed his 

arguments at the sentencing hearing; but, the district court imposed the previously 

contemplated, above-Guidelines sentence. Id. at 1247. On appeal, Mr. Gantt argued 

the district court committed procedural error by not adequately considering several of 

his arguments before imposing its sentence. Id. at 1247. This court concluded Mr. 

Gantt had failed to preserve his procedural reasonableness challenge to his sentence 

because he never objected to the extent of the district court’s consideration of and 

explanation for rejecting his arguments for a lesser sentence. See id. at 1247-48. We 

instructed that to preserve a procedural reasonableness challenge based on the 

sentencing court’s failure to consider and explain its reasons for rejecting a 

defendant’s argument for a lesser sentence, the defendant “needed to alert the court 

that its explanation was inadequate, which ordinarily would require an objection after 
11 

the court had rendered sentence.” Id.; see United States v. Pacheco-Donelson, ___ 

F.3d ___, 2018 WL 3078024, at *1 (10th Cir. June 22, 2018) (applying plain error 

review to procedural challenge on appeal because “substantive objection did not 

preserve the procedural issue on the adequacy of the findings”). 

 Here, Mr. Chavez-Morales presented his economic motivation argument in a 

sentencing memorandum filed subsequent to the district court indicating that it might 

impose an above-Guidelines sentence. Mr. Chavez-Morales renewed his economic 

motivation argument at the sentencing hearing. Before imposing its sentence, the 

district court commented on Mr. Chavez-Morales’s economic motivation argument 

three times, and Mr. Chavez-Morales did not raise an objection on the ground that the 

district court’s comments on the argument did not amount to meaningful 

consideration for procedural purposes. Thus, Mr. Chavez-Morales did not alert the 

district court that its explanation was inadequate so as to permit the district court to 

further consider and elaborate on its reasons for discounting the argument. Therefore, 

in accord with Gantt, Mr. Chavez-Morales did not preserve his argument and the 

argument is subject to plain error review.4

 4

 Mr. Chavez-Morales urges us to rely on United States v. Lopez-Avila, 665 

F.3d 1216 (10th Cir. 2011), to reach the opposite conclusion. In Lopez-Avila, we 

concluded that a defendant’s initial argument on a matter preserved the argument for 

appellate review where an objection would have been a “superfluous and futile 

gesture” given the district court’s response to the argument. Id. at 1218. While Mr. 

Chavez-Morales objecting to the substance of the district court’s reasons for rejecting 

his economic motivation argument may have been futile, an objection regarding the 

extent of the district court’s consideration of and response to his economic 

motivation argument would not have been “superfluous and futile” because it would 
12 

Under plain error review, the defendant must establish that “(1) the district court 

committed error; (2) the error was plain—that is, it was obvious under current 

well-settled law; (3) the error affected the Defendant’s substantial rights; and (4) the error 

seriously affected the fairness, integrity, or public reputation of judicial proceedings.” 

Gantt, 679 F.3d at 1246 (internal quotation marks omitted). “Because all four 

requirements must be met, the failure of any one will foreclose relief.” Id. Finally, 

although Mr. Chavez-Morales did not present an argument for plain error review in 

his opening brief, his advancement of a plain error argument in his reply brief is 

sufficient to permit us to consider the argument under plain error review. See United 

States v. Courtney, 816 F.3d 681, 684 (10th Cir. 2016). 

2. Analysis of Argument 

 “[W]here a defendant has raised a nonfrivolous argument that the § 3553(a) 

factors warrant a [sentence below that imposed by the district court], we must be able to 

discern from the record that ‘the sentencing judge . . . considered whether the [sentence 

imposed] actually conforms, in the circumstances, to the statutory factors.’” United States 

v. Sanchez-Juarez, 446 F.3d 1109, 1117 (10th Cir. 2006) (quoting United States v. 

Cunningham, 429 F.3d 673, 676 (7th Cir. 2005)); see United States v. Estrada-Mederos, 

784 F.3d 1086, 1090 (7th Cir. 2015) (“The district court is required to adequately explain 

the chosen sentence . . . . A judge who fails to mention a ground of recognized legal merit 

. . . is likely to have committed an error or oversight.” (quotation marks and citations 

 

have permitted the district court an opportunity to assess whether further discussion 

of the argument was necessary to satisfy procedural requirements. 
13 

omitted)). “Potential merit does not mean the sentencing court must accept the 

argument, but it ordinarily will deserve explicit comment.” Estrada-Mederos, 784 

F.3d at 1091. And, courts have recognized that a defendant’s economic motivations 

for committing an offense may be a meritorious mitigating argument under the 

§ 3553(a) factors. See United States v. Arias-Lopez, 533 F. App’x 824, 827 & n.2 

(10th Cir. 2013) (identifying economic motivation for illegal reentry as a “potentially 

mitigating fact[]”); cf. Wisconsin v. Mitchell, 508 U.S. 476, 485 (1993) 

(“[S]entencing judges have considered a wide variety of factors in addition to 

evidence bearing on guilt in determining what sentence to impose on a convicted 

defendant. The defendant’s motive for committing the offense is one important 

factor.” (citations omitted)). Accordingly, where Mr. Chavez-Morales argued that 

economic incentives in the United States motivated him to commit his illegal reentry 

offense and that these incentives lessened the seriousness of his offense, the district 

court needed to address the argument before imposing an above-Guidelines sentence. 

 Contrary to Mr. Chavez-Morales’s argument, however, the transcript of the 

sentencing hearing shows that the district court responded to the argument on three 

separate occasions. Although the district court acknowledged that wages in the 

United States were higher than wages in Mexico, it discounted the logic and veracity 

of Mr. Chavez-Morales’s argument on the ground that Mr. Chavez-Morales had 

earned less money during the seven-plus years he had spent in a United States prison 

then he would have had he worked in Mexico. The district court also rejected the 

mitigating value of Mr. Chavez-Morales’s economic argument based on the limited 
14 

amount of time between his most recent deportation and his present offense, noting 

that Mr. Chavez-Morales “didn’t really try to make a go of it [in Mexico].”5

 ROA 

Vol. 3 at 26. Accordingly, the district court did not commit procedural error because 

it satisfied its procedural duty to consider Mr. Chavez-Morales’s economic 

motivation argument and provided reasons for rejecting the argument before 

imposing an above-Guidelines sentence.6

B. Imposition of Supervised Release

 Mr. Chavez-Morales argues that the district court committed procedural error 

by imposing a term of supervised release without considering U.S.S.G. § 5D1.1(c). 

Mr. Chavez-Morales, however, concedes that because he did not object to the 

imposition of a term of supervised release, his argument is subject to plain error 

review. As noted earlier, under plain error review, the defendant must establish that “(1) 

 5

 Mr. Chavez-Morales also suggests that the district court erred by relying on a 

need to promote respect for the law, see 18 U.S.C. § 3553(a)(2)(A), when selecting 

Mr. Chavez-Morales’s sentence after it conceded that a “subjective” disrespect for 

the law did not motivate Mr. Chavez-Morales to commit his most recent offense, see 

ROA Vol. 3 at 29. We read the district court’s comments more narrowly than does 

Mr. Chavez-Morales. It may be the case that a disrespect for the law was not the 

prevailing reason behind Mr. Chavez-Morales’s decision to illegally reenter the 

United States. But, as the district court noted, it is not hard to conclude that an 

individual has objectively disrespected the laws of the United States by incurring five 

independent convictions for the same general offense. Separately, nothing in the 

language of § 3553(a)(2)(A) requires the district court to find a subjective disrespect 

for the law before relying on the factor when determining what sentence is sufficient, 

but not greater than necessary, to satisfy the § 3553(a) factors. Instead, a district 

court may rely on § 3553(a)(2)(A) to select a sentence that promotes a general, 

societal respect for the law. 

6

 Because Mr. Chavez-Morales has not demonstrated that the district court 

committed procedural error, his challenge to his sentence would also fail under the 

more favorable abuse of discretion standard of review for which he advocated. 
15 

the district court committed error; (2) the error was plain—that is, it was obvious under 

current well-settled law; (3) the error affected the Defendant’s substantial rights; and (4) 

the error seriously affected the fairness, integrity, or public reputation of judicial 

proceedings.” Gantt, 679 F.3d at 1246 (internal quotation marks omitted).7

 We 

commence our plain error analysis by discussing the procedural steps in which the district 

court needed to engage before imposing supervised release on Mr. Chavez-Morales given 

that he was likely to be deported upon completing his term of imprisonment. 

 Where Mr. Chavez-Morales’s present illegal reentry conviction occurred after a 

conviction for an aggravated felony, his conviction carried a maximum sentence of 

twenty years’ imprisonment and qualified as a Class C felony. See 8 U.S.C. § 1326(b)(2), 

18 U.S.C. § 3559(a)(3). Section 3583 of Title 18 authorizes a term of supervised release 

of “not more than three years” for a Class C felony. 18 U.S.C. § 3583(b)(2) (emphasis 

added). Accordingly, the district court was not statutorily required to impose a term of 

supervised release on Mr. Chavez-Morales. 

 Section 5D1.1 of the United States Sentencing Guidelines advises that “[t]he court 

ordinarily should not impose a term of supervised release in a case in which supervised 

 7

 The Supreme Court’s recent decision in Rosales-Mireles v. United States

alters the threshold for satisfying the fourth prong of the plain error analysis relative 

to an “ordinary case” involving “a plain Guidelines error that affects a defendant’s 

substantial rights.” ___ S. Ct. ___, 2018 WL 3013806, at *12 (June 18, 2018). But, 

Rosales-Mireles arose within the context of an error in calculating the defendant’s 

Guidelines range. See id. at *4. Because Mr. Chavez-Morales fails to satisfy the third 

prong of the plain error analysis, we need not decide whether the district court’s 

failure to tie its comments about deterrence to its imposition of a term of supervised 

release qualifies as a Guidelines error or whether Rosales-Mireles applies to 

Guidelines errors that do not involve the calculation of a Guidelines range. 
16 

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) (emphasis added). Commentary to 

U.S.S.G. § 5D1.1 provides the rationale for ordinarily not imposing supervised release on 

a defendant who is a deportable alien: 

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. The 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. 

U.S.S.G. § 5D1.1 n.5 (emphasis added). 

 In imposing a term of supervised release, the district court did not acknowledge or 

consider the guidance in U.S.S.G. § 5D1.1(c) and the accompanying commentary. Nor 

did the district court specifically link its imposition of supervised release to a need for 

deterrence or protection. And while the district court did focus on the need for specific 

deterrence when selecting Mr. Chavez-Morales’s term of imprisonment, Tenth Circuit 

precedent prevents us from imparting the district court’s reasons under the § 3553(a) 

factors for selecting a term of imprisonment onto its decision to impose a term of 

supervised release. See United States v. Zanghi, 209 F.3d 1201, 1205 (10th Cir. 2000) (“It 

is not appropriate simply to assume that the sentencing court’s reason for imposing a 

prison term likewise extends to its decisions regarding supervised release . . . nor is it 

consistent with our appellate function to do so.”). Instead, the district court should have 

recognized the advice in U.S.S.G. § 5D1.1(c) regarding ordinarily not imposing 
17 

supervised release and then explicitly tied its imposition of supervised release to the 

added deterrent effect of doing so in Mr. Chavez-Morales’s case, the need to protect the 

public, and any of the other relevant 18 U.S.C. § 3583(c) factors governing supervised 

release. By not engaging in these procedural steps, the district court committed error. See 

United States v. Solano-Rosales, 781 F.3d 345, 353–54 (6th Cir. 2015) (concluding that 

district court commits error by imposing term of supervised release on deportable alien 

without acknowledging U.S.S.G. § 5D1.1(c) and without providing “reasoning for taking 

a different course of action” than recommended by § 5D1.1(c)); see also United States v. 

Azcona-Polanco, 865 F.3d 148, 153 (3d Cir. 2017) (suggesting that district court must 

acknowledge U.S.S.G. § 5D1.1(c) and “must ‘explain and justify’ the imposition of 

supervised release on a deportable immigrant” (quoting United States v. Murray, 692 

F.3d 273, 281 (3d Cir. 2012))). 

 Although the district court committed error, we conclude that Mr. Chavez-Morales 

failed to sustain his burden on the third prong of the plain error analysis.8

 Under the third 

prong, Mr. Chavez-Morales must establish that there is “a ‘reasonable probability’ that 

the defects in his sentencing altered the result of the proceedings.” United States v. 

Dazey, 403 F.3d 1147, 1175 (10th Cir. 2005) (quoting United States v. Dominguez 

Benitez, 542 U.S. 74, 81–82 (2004)). Mr. Chavez-Morales argues that because U.S.S.G. 

 8

 Because Mr. Chavez-Morales fails to sustain his burden on the third prong of 

the plain error analysis, we need not address the second prong—whether the district 

court’s error was plain. See United States v. Gonzalez-Huerta, 403 F.3d 727, 736 

(10th Cir. 2005) (finding it unnecessary to analyze third prong of plain error analysis 

where appellant did not satisfy fourth prong). 
18 

§ 5D1.1(c) indicates that supervised release is “ordinarily” not appropriate, it follows that 

there is a reasonable probability that the district court would not have imposed a term of 

supervised release had it acknowledged and considered § 5D1.1(c). Mr. ChavezMorales’s argument, however, does not account for the specific facts of his case. 

From the time of considering the fast-track plea agreement through the sentencing 

hearing, the district court repeatedly expressed concerns about Mr. Chavez-Morales’s 

history of illegal reentry offenses, as well as the need to deter Mr. Chavez-Morales so 

that he did not illegally reenter the United States a sixth time.9

 And while the district 

court did not adequately tie its imposition of a term of supervised release to deterrence 

for purposes of our error analysis, threads of a deterrence rationale appear in the 

 9

 Although United States v. Zanghi prohibits us from ascribing the district 

court’s reasons for selecting a term of imprisonment to its decision to impose a term 

of supervised release when determining if the district court adequately explained its 

decision to impose supervised release, Zanghi involved a preserved challenge to a 

term of supervised release that we reviewed under an abuse of discretion standard. 

209 F.3d 1201, 1203 (10th Cir. 2000). Accordingly, nothing in Zanghi prohibits us 

from considering the proceedings as a whole when determining whether Mr. ChavezMorales established a reasonable probability of a different result absent the error. 

And, other circuits that follow the reasoning of Zanghi have considered the 

proceedings as a whole, including the district court’s explanation for its sentence, 

when evaluating the third prong of the plain error analysis relative to a challenge to 

the imposition of supervised release in light of U.S.S.G. § 5D1.1(c). See United 

States v. Azcona-Polanco, 865 F.3d 148, 153–54 (3d Cir. 2017) (noting that “[t]he 

requirement that a district court provide an adequate explanation applies to 

supervised release” but considering proceedings as a whole, including defendant’s 

history and characteristics, when evaluating third prong of plain error analysis); 

United States v. Solano-Rosales, 781 F.3d 345, 352, 354–55 (6th Cir. 2015) 

(acknowledging requirement that district court provide reasons specific to imposition 

of supervised release but considering all of district court’s comments when 

evaluating third prong of plain error analysis). 
19 

statement made by the district court contemporaneous to its decision to impose 

supervised release: 

The term is unsupervised with mandatory and standard conditions, and the 

following special condition. The Defendant shall not illegally re-enter the 

United States. And I hope this time around the Defendant will listen to what 

I’m telling him, and listen to what his lawyer told him. You will never, ever 

be authorized to come to the United States legally. So unless you want to 

essentially spend the rest of your life sitting in a U.S. prison cell, I strongly 

recommend that after you serve this sentence and you’re deported, you 

never return to the United States. 

ROA Vol. 3 at 30. Finally, at a hearing prior to sentencing, Mr. Chavez-Morales’s own 

counsel suggested that the district court could impose a term of supervised release as an 

added means of deterrence because the term of supervised release would permit the 

district court to impose a revocation sentence should Mr. Chavez-Morales illegally return 

to the United States during the term of supervised release. 

Considering the proceedings as a whole, we conclude that (1) the need for 

deterrence was particularly high in Mr. Chavez-Morales’s case given his numerous illegal 

reentry convictions; (2) both the district court and Mr. Chavez-Morales’s own counsel 

recognized the need for specific deterrence; and (3) the imposition of a term of 

supervised release was likely to have a strong deterrent effect on Mr. Chavez-Morales 

given the district court’s imposition of an above-Guidelines sentence and its suggestion to 

Mr. Chavez-Morales that, if he returned, the same district court judge would impose a 

lengthy revocation sentence. On these specific facts, Mr. Chavez-Morales has not 

demonstrated a reasonable probability that if we were to remand for resentencing, the 
20 

district court would decline to reimpose the same term of supervised release.10 See 

Azcona-Polanco, 865 F.3d at 154–55 (no effect on substantial rights where district 

court cited defendant’s serious criminal history, failure to comply with order of 

removal, prior illegal reentry conviction, and purchase of false documents in effort to 

remain in United States); see also United States v. Alvarado, 720 F.3d 153, 160 (2d 

Cir. 2013) (relying on defendant’s criminal history to conclude that, if district court 

did not adequately explain reasons for imposing supervised release on deportable 

alien defendant, any error did not affect substantial rights); United States v. CancinoTrinidad, 710 F.3d 601, 606–07 (5th Cir. 2013) (concluding that, in light of 

defendant’s criminal record, defendant showed only a “possibility,” not a 

“probability,” of different result at resentencing such that the error did not affect 

substantial rights).11

 10 Mr. Chavez-Morales points to United States v. Dieudonne, 695 F. App’x 657 

(3d Cir. 2017), in support of his argument that there is a reasonable probability that 

the district court would not have imposed a term of supervised release had it 

acknowledged and considered U.S.S.G. § 5D1.1(c). Apart from the fact that 

Dieudonne is an unpublished, out of circuit decision, the government in Dieudonne

conceded the third prong of the plain error analysis, Dieudonne, 695 F. App’x at 661. 

Furthermore, the defendant in Dieudonne, while subject to deportation, was 

convicted of wire fraud offenses rather than an immigration offense and nothing in 

the Third Circuit’s opinion suggests that the defendant was in the United States 

illegally, had ever illegally reentered the country after deportation, or had even 

sustained a prior felony conviction. See id. at 658. Accordingly, Dieudonne has little 

persuasive value when considered in light of Mr. Chavez-Morales’s history and 

characteristics. 

11 Where Mr. Chavez-Morales fails to satisfy the third prong of the plain error 

test, we need not evaluate his arguments under the fourth prong of that analysis. See 

United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012).
21 

III. CONCLUSION 

We AFFIRM the district court’s judgment with respect to both Mr. ChavezMorales’s term of imprisonment and term of supervised release.