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 De fender (Michael A. Keefe, Assistant Federal Public Defender on the briefs), Albuquerque , New Mexico, for Defe ndant – 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 moti vated his decision to illegally reenter the FILED United States Court of Appeals Tenth Circuit 

### July 3, 2018
Elisabeth A. Shumaker Clerk of Court2 United States. Focusing heavily on Mr. Chav ez-Morales’s criminal history and noting that none of the earlier sentences deterr ed Mr. Chavez-Morales from reoffending, the district court imposed an upward vari ant sentence of th irty-six months’ imprisonment. The district court also im posed a three-year te rm of supervised release. 1 On appeal, Mr. Chavez-Mora les challenges the proce dural reasonableness of his term of imprisonment. Specifically, he contends the dist rict court did not meaningfully consider his argument th at economic opportunities motivated his decision to illegally reente r the United States and ther eby mitigated the seriousness of his offense. Mr. Chavez-Morales separate ly contends the dist rict court committed plain error by imposing a term of superv ised release without acknowledging or considering United States Sentencing Guidelines Manual (U.S.S.G.) § 5D1.1(c), which states a court “ordinarily” should no t impose a term of supervised release when “the defendant is a deportable al ien 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 sent encing hearing establishes that, on three occasions, the district cour t addressed Mr. Chavez-Mora les’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, “uns upervised with mandatory and standard conditions” and the special condition that Mr. Chavez-Morales “not illegally re-enter the Unite d States.” ROA Vol. 3 at 30. Although Mr. ChavezMorales was not subject to supe rvision, for ease of reference, we refer to the term as a term of supervised release.3 court erred by not acknowledg ing 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, Ch aracteristics, & Offense Conduct Mr. Chavez-Morales, age fifty- six at the time of his mo st recent offense, is a citizen of Mexico. As a re sult of his family’s fina ncial 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 eviden t by four Colorado convictions. By January 2000, however, Mr. Chavez-Morales had returned to Mexico. On January 30, 2000, Mr. Chavez-Morale s 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 retu rned 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 rele ase. 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 ag ents at a port of entry. Mr. Chavez-Morales pleaded guilty to the offense of illegal reentry and4 incurred a sentence of thirty -seven months’ imprisonmen t, followed by two years’ unsupervised release. Mr. Ch avez-Morales was deported in September 2009. In June 2011, Border Patrol agents found Mr. Ch avez-Morales in the United States, which resulted in Mr. Chavez-Mora les’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 Un ited 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 deporte d, 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 governme nt negotiated a fast-track plea agreement under Federal Rule of Crimin al Procedure 11(c)(1)(C) and U.S.S.G. § 5K3.1. The fast-track plea agreement es timated a Sentencing Guidelines range of nine to fifteen months and, if accepted by th e district court, would have obligated the court to impose a within-Guidelines sent ence. Focusing on Mr. Chavez-Morales’s history of reentry offenses and the need to impose a sentence th at would satisfy the

2 In total, Mr. Chavez-Mora les’s four prior illegal re entry 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 ad equately deterring Mr. Chavez-Morales, the district court rejected the fast-track plea agreement. Th e district court indicated, however, that if Mr. Chavez-Mo rales entered into a non-fa st-track plea agreement, a within-Guidelines sentence would lik ely 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 in to 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 c ourt granted Mr. Chavez- Morales’s motion to formally withdraw the guilty plea he en tered pursuant to th e fast-track plea agreement. Thereafter, a grand jury indi cted Mr. Chavez-Morales on one count of illegal reentry by a removed alien after depor tation subsequent to a conviction for an aggravated felony, in viola tion of 8 U.S.C. §§ 1326(a), (b). Mr. Chavez-Morales then entered a straight-up guilty plea, w ithout a written plea agreement. Based on a total offense leve l of ten and a criminal history category of V, a presentence investigation report (“PSR”) es tablished a Guidelines range of twentyone to twenty-seven months’ imprisonment. See U.S.S.G. ch. 5 pt. A (sentencing table). Relying on Mr. Ch avez-Morales’s 8 U.S.C. §§ 1326(a)(1), (b)(2) offense being a Class C felony, the PSR established a Guidelines ra nge 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 hi s offense level. Under the negotiated fast-track plea ag reement, Mr. Chavez-Morale s 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 ordinar ily 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 impris onment.” 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 upwar d variant sentence of thirty-eight months’ imprisonment, arguing that Mr. Ch avez-Morales’s longest previous sentence of thirty-seven months did not adequate ly deter him from reentering the United States. Mr. Chavez-Morales argued for a with in-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 illeg ally reentering the United States. When Mr. Chavez-Morale s’s counsel compared the wages Mr. Chavez-Morales could earn in Mexico to th e hourly wages in the United States, the district court interjected a nd 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, lo cked up. So again, this seems to be a7 part of—it should become very clear. Wh at’s very clear to all of us should become very clear to Mr. Chavez-Mo rales, and we hope that it does. ROA Vol. 3 at 19–20. The district court commenc ed announcing its sentence by reciting the 18 U.S.C. § 3553(a) factors, placing emphasis on the ne ed to promote respect for the law and the need to adequately de ter Mr. Chavez-Morales. See 18 U.S.C. § 3553(a)(2)(A), (B). In discussing the need to promote respect fo r 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 Stat es. 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 Para graph 29 of this Presentence Report where he was given 18 mont hs 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 Sentenci ng Memorandum, [counsel for Mr. Chavez-Morales] talked about the wa ges 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, 2 016, and he’s arrested w ithin a little mo re than 30 days here. So that just tends to ring ho llow and just comes back to the point that he didn’t really tr y 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 co me back based on what he knew he could earn. I don’t think things had chan ged that much in Mexico [during his last prison sentence].” Id. at 26. To which, the di strict 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 pr ison in the United States, he could be making more if he was living and working in Mexico. Other than he gets a small inmate a ccount at the detention facility, they’re not paying in detention wh at he could be earning in Mexico. So, again, it8 comes back as a complete and total l ack 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 hi m 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 evid enced a lack of respect for the laws of the United States. Mr. Chavez-Morales’s coun sel 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 si tuation where I think Mr. Chavez-Morales is thumbing his nose an d saying, hey—I don’t think that’s the thought process th at goes into this. I think the incentive is to come back to the Un ited States, and again, I think it is more of an economic dr iven decision than it is sort of, you know, I don’t care what their laws are. . . . So I understand why the Court woul d say that. It makes sense in terms of the way you look at things on paper. I’m ju st saying, in terms of knowing Mr. Chavez-Morales over thes e 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 indi cate 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 ma ybe that was the first go-around, but again, this is—is it the four th or the fifth re-entry? Th is 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, en ough 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 gr eater than necessary to satisfy those goals. Id. at 28–29.9 The district court then an nounced its sentence. Alth ough inclined to impose a 48-month sentence, the district court credite d Mr. Chavez-Morales’s good behavior and work ethic while awaiting sentencing and se ttled on a sentence of thirty-six months’ imprisonment. On the matter of supervised release, the district court stated: After service of the sentence, the Defenda nt is placed on supervised release for a term of three years. The termis unsupervised with mandatory and standard conditions, and the followin g 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 es sentially spend the rest of your life sitting in a U.S. prison cell, I strongl y recommend that after you serve this sentence and you’re deported, you ne ver 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-Mora les argues that the dist rict 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 ar guments for a lower sentence. The government cont ends that Mr. Chavez-Morale s, by not objecting to the adequacy of the district court’s consideration of a nd response to his economic motivation argument, did not preserve the i ssue for appellate revi ew and that, if we10 review the argument, we s hould do so under a plain erro r standard. In reply, Mr. Chavez-Morales argues for an abuse of discretion standard of review but, alternatively, presents an argument under the plain error standa rd. We discuss the appropriate standard of revi ew before turning to the me rits of Mr. Chavez-Morales’s argument that the district cour t 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 revi ew Mr. Chavez-Morales’ s procedural error argument. In Gantt , the defendant filed a senten cing memorandum raising several arguments counseling against the above-G uidelines sentence th e district court indicated it was prepared to impose. 679 F.3d 1244, 1247. Mr. Gantt renewed his arguments at the sentencing h earing; but, the district c ourt imposed the previously contemplated, above-Guidelines sentence. Id. at 1247. On appeal, Mr. Gantt argued the district court committed procedural erro r 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 ar guments for a lesser sentence. See id. at 1247-48. We instructed that to preserve a procedur al reasonableness challenge based on the sentencing court’s failure to consider and explain its reas ons for rejecting a defendant’s argument for a le sser sentence, the defendant “needed to alert the court that its explanation was inadequate, which ordinarily would requ ire an objection after11 the court had rendered sentence.” Id. ; see United States v. Pacheco-Donelson , ___ F.3d ___, 2018 WL 3078 024, 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 th e district court indi cating that it might impose an above-Guidelines sentence. Mr . Chavez-Morales renewed his economic motivation argument at the sentencing hear ing. Before imposing its sentence, the district court commented on Mr. Chavez- Morales’s economic motivation argument three times, and Mr. Chavez-Mo rales did not raise an objection on the ground that the district court’s comments on the ar gument did not amount to meaningful consideration for procedural purposes. Th us, Mr. Chavez-Morales did not alert the district court that its explana tion was inadequate so as to permit the district court to further consider and elaborat e on its reasons for discounti ng the argument. Therefore, in accord with Gantt , Mr. Chavez-Morales did not pr eserve his argument and the argument is subject to plain error review. 4

4 Mr. Chavez-Morales ur ges us to rely on United States v. Lopez-Avila , 665 F.3d 1216 (10th Cir. 2011), to r each 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 woul d have been a “superfluous and futile gesture” given the district cour t’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 argum ent may have been futile, an objection regarding the extent of the district court’s consid eration of and response to his economic motivation argument would not have been “superfluous and futile” because it would12 Under plain error review, the defendant must establish that “(1) the district court committed error; (2) the e rror was plain—that is, it was obvious under current well-settled law; (3) the error affected the Defe ndant’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 quotatio n marks omitted). “Because all four requirements must be met, the failur e 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 pl ain 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 no nfrivolous 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 circum stances, 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 distri ct 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 asse ss whether further discussion of the argument was necessary to sa tisfy procedural requirements.13 omitted)). “Potential merit does not mean the sentencing court must accept the argument, but it ordinarily wi ll deserve explicit comment.” Estrada-Mederos , 784 F.3d at 1091. And, courts ha ve recognized that a defenda nt’s economic motivations for committing an offense may be a me ritorious mitigating argument under the § 3553(a) factors. See United States v. Arias-Lopez , 533 F. App’x 824, 827 & n.2 (10th Cir. 2013) (ide ntifying economic motivation for ill egal reentry as a “potentially mitigating fact[]”); cf. Wisconsin v. Mitchell , 508 U.S. 476, 485 (1993) (“[S]entencing judges have considered a wi de 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 co mmitting the offense is one important factor.” (citations omitte d)). Accordingly, where Mr . Chavez-Morales argued that economic incentives in the United States motiv ated him to commit his illegal reentry offense and that these incentiv es lessened the seriousness of his offense, the district court needed to address the argument befo re imposing an above-G uidelines sentence. Contrary to Mr. Chavez-Morales’s argum ent, 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 Me xico, it discounted th e logic and veracity of Mr. Chavez-Morales’s argument on th e ground that Mr. Chavez-Morales had earned less money during the seven-plus year s he had spent in a United States prison then he would have had he worked in Mexi co. The district cour t also rejected the mitigating value of Mr. Chavez-Morales’ s economic argument based on the limited14 amount of time between his most recent de portation 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 c ourt did not commit procedural error because it satisfied its procedural duty to c onsider 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 th at the district court co mmitted procedural error by imposing a term of superv ised release without consid ering 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 releas e, his argument is s ubject to plain error review. As noted earlier, under plain error revi ew, the defendant must establish that “(1)

5 Mr. Chavez-Morales also s uggests that the district court erred by relying on a need to promote re spect 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 disresp ect for the law was not the prevailing reason behind Mr. Chavez-Morale s’s decision to ille gally reenter the United States. But, as the district court not ed, it is not hard to conclude that an individual has objectively disrespected the la ws of the United States by incurring five independent convictions for the same gene ral offense. Separately, nothing in the language of § 3553(a)(2)(A) requires the dist rict court to find a subjective disrespect for the law before relying on the factor wh en determining what se ntence 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-Morale s has not demonstrated th at the district court committed procedural error, his challenge to his senten ce would also fail under the more favorable abuse of di scretion standard of review for which he advocated.15 the district court committed error; (2) the e rror was plain—that is, it was obvious under current well-settled law; (3) the error affect ed the Defendant’s substantial rights; and (4) the error seriously affected the fairness, in tegrity, or public reputation of judicial proceedings.” Gantt , 679 F.3d at 1246 (inter nal 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 s upervised 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 ille gal 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 35 83 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 Gu idelines 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 er ror in calculating the defendant’s Guidelines range. See id. at *4. Because Mr. Chavez-Mora les fails to sa tisfy the third prong of the plain error analysis, we need not decide whether the district court’s failure to tie its comments a bout deterrence to its impositi on of a term of supervised release qualifies as a Guid elines 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 de fendant is a deportabl e 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 return s to the United States, supervised release is unnecessary. If such a defe ndant illegally retu rns to the United States, the need to afford adequa te 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 adde d 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 impa rting the district court’s reasons under the § 3553(a) factors for selecting a term of imprisonm ent 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, th e district court should have recognized the advice in U. S.S.G. § 5D1.1(c) regardin g ordinarily not imposing17 supervised release and then explicitly tied its imposition of supervised release to the added deterrent effect of doing so in Mr. Ch avez-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 procedur al 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) a nd without providing “r easoning for taking a different course of action” th an recommended by § 5D1.1(c)); see also United States v. Azcona-Polanco , 865 F.3d 148, 153 (3d Cir. 2017) (sug gesting that district court must acknowledge U.S.S.G. § 5D1.1(c) and “mus t ‘explain and justify’ the imposition of supervised release on a depo rtable immigrant” (quoting United States v. Murray , 692 F.3d 273, 281 (3d Cir. 2012))). Although the district court committed erro r, we conclude that Mr. Chavez-Morales failed to sustain his burden on the thir d 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 alte red 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-M orales argues that because U.S.S.G.

8 Because Mr. Chavez-Morale s fails to sustain his bur den on the third prong of the plain error analysis, we need not addr ess 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 an alyze third prong of plain error analysis where appellant did not satisfy fourth prong).18 § 5D1.1(c) indicates that supervised release is “ordinarily” not appr opriate, it follows that there is a reasonable probability that the distri ct 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-tra ck plea agreement through the sentencing hearing, the district court repeatedly expr essed 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 reente r 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, thread s of a deterrence rationale appear in the

9 Although United States v. Zanghi prohibits us from as cribing the district court’s reasons for selecting a term of imprisonment to its decision to impose a term of supervised release when de termining if the district c ourt adequately explained its decision to impose supervised release, Zanghi involved a preserved challenge to a term of supervised release that we reviewed under an a buse of discretion standard. 209 F.3d 1201, 1203 (10t h Cir. 2000). Accordingly, nothing in Zanghi prohibits us from considering the proceedings as a w hole when determining whether Mr. ChavezMorales established a reasona ble probability of a differen t result absent the error. And, other circuits that follow the reasoning of Zanghi have considered the proceedings as a whole, including the dist rict court’s explana tion for its sentence, when evaluating the third prong of the plain error analysis relativ e 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 proceed ings as a whole, in cluding defendant’s history and characteristics, when evaluati ng third prong of plain error analysis); United States v. Solano-Rosales , 781 F.3d 345, 352, 354–55 (6th Cir. 2015) (acknowledging requirement th at district court provide reasons specific to imposition of supervised release but considering al l of district cour t’s comments when evaluating third prong of plain error analysis).19 statement made by the district court c ontemporaneous to its decision to impose supervised release: The term is unsupervised with mandatory and stan dard conditions, and the following special condition. The Defenda nt shall not illegally re-enter the United States. And I hope this time ar ound 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 si tting 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 prio r to sentencing, Mr. Chavez-Morales’s own counsel suggested that the district court coul d impose a term of supervised release as an added means of deterrence because the term of supervised rele ase would permit the district court to impose a revocation sentence should Mr. Chavez-Mo rales illegally return to the United States during the te rm of supervised release. Considering the proceedings as a whole, we conclude that (1) the need for deterrence was particularly high in Mr. Chav ez-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 stro ng deterrent effect on Mr. Chavez-Morales given the district court’s imposition of an abov e-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 speci fic facts, Mr. Chavez-Morales has not demonstrated a reasonable probability that if we were to remand for resentencing, the20 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, failu re to comply with order of removal, prior illegal reentry conviction, and purchase of fa lse 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 concl ude that, if district court did not adequately explain reasons for imposing supervised release on deportable alien defendant, any error did no t affect substantial rights); United States v. CancinoTrinidad , 710 F.3d 601, 606–07 (5th Cir. 2013) (concluding that, in light of defendant’s criminal reco rd, defendant showed only a “possibility,” not a “probability,” of different re sult at resentencing such th at 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 circ uit 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 li ght of Mr. Chavez-Mo rales’s history and characteristics.

11 Where Mr. Chavez-Mo rales fails to sati sfy 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 w ith respect to bo th Mr. ChavezMorales’s term of imprisonment a nd term of supervised release.