### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-40006

UNITED STATES OF AMERICA, Plaintiff-Appellee
v. MARGARITO CHAVEZ-TREJO, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 5:11-cr-1021

Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges. PER CURIAM: * D e f e n d a nt-Appellant Margarito Chavez-Trejo, a citi z e n o f M e xi c o , p l e a d e d guilty to illegal r eentry following deportation i n violation of 8 U.S.C. § 1326. The presentence report (“PSR”), prepared o n November 3, 2011, and a pplyin g t he 2011 edition of the Sentencing Guidelines, calculated his total o ffense l evel to be 22 with a criminal history category o f I II, resulting in a recommended Sentencing Guidelines range of 51 to 63 months. Effective November 1, 2011, Guidelines § 5D1.1, “Imposition of a Term of U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D April 3, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-40006 Document: 00512196303 Page: 1 Date Filed: 04/03/2013No. 12-40006

Supervised Release,” was amended to add subsection (c), which provides: “The court ordinarily s hould not impose a term of supervised release i n a case in which s u per v i s ed release is not required by s tatute a nd the defendant i s a deportable alien who likely will be deported after imprisonment.” U.S.S.G. § 5D1.1(c) (2011). The commentary accompanying § 5D1.1(c) states: Application of Subsection (c)

. —In a case i n which the defendant is
a deportable alien specified in subsection (c) and supervised release is not required by statute, the c ourt ordinarily should not impose a term of supervised release. U nless such a defendant legally returns to the United States, superv i sed release is unnecessary. I f s uch a defendant illegally returns to the United States, the need t o afford adequate deterrence a nd protect th e public ordinarily is adequately served b y a new prosecution. The court should, h owever, consider imposing a term of supervised release on s u ch a defendant if th e court determines it would provide an added measure of deterrence and protection b ased on the facts and circumstances of a particular
case. U.S.S.G. § 5D1.1 cmt. n.5. 1 Although the PSR contained an accurate recitation of § 5D1.1, in the immediately preceding paragraph, the PSR also advised: Gu i d eline Provisions: The guideline range for a t e rm of supervised release i s at least 1 year but not more t h a n 3 y e a rs, pursuant to U.S.S.G. § 5D1.2(a)(2). If a sentence o f imprisonment of 1 year or l ess is imposed, a term o f s upervised release is n ot required but i s optional, p ursuant to U.S.S.G. § 5131.1(b). Supervised release is required if the Court imposes a t e rm of imprisonment of more than 1 year, pursuant to U.S.S.G. § 5D1.1(a). This was an inaccurate summary of § 5D1.1, w hich further p rovides that “[t]he c ourt shall order a term of supervised release to follow imprisonment

. . . except as provided in subsection (c).” U.S.S.G. § 5D1.1(a)(2) (emphasis added).

1 G uid elines com m entary is equivalent in f orce to the G uid elines language its elf as long
as the language and the com mentary are not incons is tent. U ni t ed S t a tes v
. Ra

yo- V a l dez , 302 F. 3d 314, 318 n. 5 ( 5th Cir. 2002) ( citing Sti nson v
. U ni ted Sta tes , 508 U

. S. 36, 42–43 ( 1993) )

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The PSR thus incorrectly listed the applicable Guidelines range for supervised release as a mandatory t erm o f at least one year, but not more than three years. Chavez-Trejo did not f ile objections to the P SR but requested a d o wnward variance from the Guidelines range. The district court imposed a below-Guidelines s entence of 40 m onths of imprisonment. It also i mposed three
years of supervised release. In discussing its imposition of a term of supervised release, the district court made the following remarks: THE COURT: I’m going to s entence you t o 40 months, Mr. Chavez- T r ejo. Hopefully -- well, you’ve b een through this b efore. Hopefully, you will n o t s e rv e the full amount of time. I doubt you served -- I d oubt you served a full 50 months back in 2004. Because you’re entitled to get c redit for good behavior a nd you will get credit for the time you’ve been with us. You’ve already been with us five months. But when you get out, you’ll be p ut on super vi s e d r elease a gain. You’ve been through this again, but -- it’s a r e quirement of the law, but it a lso -- we cannot supervise you anyway. B eca u se you’re supposed to be in Mexico and we cannot s upervise yo u i n M e x i co. So if you stay there like you’re s upposed to, it doesn’t mean a thing. But if we see you again in this country, whether it’s t o visit the first family, or some other fami l y , or just t o s hop, or pray, or w hatever, the minute you step foot here, y ou’re c ommitting a crime a gain. So if y ou’re c aught in the first three years after you get out, you’ll get new charges, plus two more years in this case. But even if you w ait three years, you ’ l l a l w a y s be facing the new charges. You d on’t have papers. Just looking at this, it’s not likely you’re ever going to get real p apers, valid paper s
. An d so you just need t o - - no matter what kind o f excuses or problems you think you have in Mexico, the b est advice I c an give you i s go South. G o to th e interior of Mexico, or go to Cen t r a l A m e r ica, o r go to Brazil, or somewhere. But don’t come here. Because you’re just a nnouncing that you would like to go back to prison again.

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On appeal, Chavez-Trejo argues that the district c ourt p rocedurally and substantively plainly e rred in imposing a term of s uperv i s e d release. 2 Plain

error review requires determining whether (1) there was error; (2) it was plain

or obvious; (3) the error a ffected the defendant’s substantial rights; and (4) this court should exercise its discretion to correc t the error in order t o prevent a manifest miscarriage of justice. U n i t e d States v. Olano , 5 07 U.S. 725, 732–37 (1993); see United States v. Infante , 404 F.3d 376, 394 (5th Cir. 2005). This court retains discretion t o correct reversible plain error, but will do so “ only if the error seriously affects the fairn ess, integrity, or public reputation of judicial
p roceedings.” Puckett v. United States , 556 U.S. 129, 135 (2009) (inte r n a l quotation marks and alterations omitted). The district c ourt’s statement that supervised release was “a r equirement of th e law” was error that was both clear and obvious. See United States v. Blocker , 612 F.3d 413, 416 (5th Cir. 2010) (per curiam); see also U nited States v. Martinez-Berrios , N o. 12-40041, 2012 WL 6634605, at *1 (5th Cir. Dec. 21, 2012) (per curiam) (unpub l i s h e d) (error was clear or obvious w here there was “no indication that the district court accounted for or considered § 5D1.1(c)”). Whether this error affect ed Chavez-Trejo’s substantial rights is a closer question. The gov e r n m e nt points to Chavez-Trejo’s criminal history and two prior deportations and a rgues that, to the extent there was plain error, the error did not “increase[] the term o f a s e n t e n ce, such that there i s a reasonable probability of a lower sentence on remand.” United St a t es v
. Garcia-Quintanilla , 574 F .3d 295, 304 (5th C ir. 2 009). The gov e r n m ent f urther argues that the sentencing transcript reveals that t h e district c ourt imposed a term of

2 Chavez- Trejo als o contend s that the dis trict court p lainly erredby not giving notice bef ore d ep arting from the G uid elines , but conced es in his rep ly brief that this argum ent is f oreclos ed by our intervening d ecis ion in U ni ted S t a t es v
. Dom i nguez
-A l v a ra do , 695 F. 3d 324, 329 ( 5th C ir. 2012)

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supervised release because it believed doing so “would provide a n a d d e d m e a s u r e of deterrence and p r o t ection based on the facts a nd circumstances of [this] particular case.” U.S.S.G. § 5D1.1 cmt. n.5. We understand these arguments to b e related. To the e xtent the district court acted out of a desire to deter C havez-Trejo, it is less likely that the district court would impose a lower sentence on r emand. Conversely, t h e case for remand becomes stronger if the district c ourt’s sentence was b ased on factors it considered only because of an erroneous understanding of the Guidelines. We look, then, at the sentence imposed and at the district court’s reasoning in imposing its sentence. W e n o t e, first, that the district court imposed a below-Guidelines se nt e n c e
. In so doing, the district court identified multiple grounds f or leniency, including, i n t e r alia , that Chavez-Trejo “[is] the father of s ix children” who are U.S. citizens. This suggests that a rem a n d t o resentence under a correct understanding of § 5D1.1 might result in a s entence without supervised release. Next, we observe that the one ground under § 5D1.1(c) that w o uld justify the imposition of supervi s e d r elease—deterrence—is not clearly i n evidence. See U.S.S.G. § 5D1.1 cm t

. n.5. The district court did not so much a s mention § 5D1.1. While we have upheld sentences in numerous ca s e s in which the district court failed to discuss § 5D1.1, we did so because the courts b ased their imposition of s upervised release on deterring f uture conduct. See, e .g. , United States v. Lara-Espinoza , 4 88 F. App’x 833, 835 (5th Cir. 2012) (per cu r iam) (unpublished) ( “ [ I ] t is i n [the] strong societal i nterest to d eter i ndividuals who engaged i n t h e k ind of crime that you were convicted of

. . . .”); DominguezAlvarado , 695 F.3d at 330 (“I gave the sentence

. . . t o d e t e r future c riminal conduct . . . .”). By contrast, h ere the district court did not explicitly discuss de t e r rence. Instead, in speaking t o Chavez-Trejo, i t observed that “we cannot supervise you
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anyway.” Possibly in a deterrence vein, the district court warned Chavez-Trejo that “if w e see you again i n this country

. . . . i n the first three years after you get out, you’ll get new c h a r g e s , p lus two more years in this c a se.” H aving read, indeed pored over, the e n tire colloquy, it is simply unclear whether deterrence

m o tivated the imposition of s upervised release o r whether, instead, it was driv e n by a mistake as to § 5D1.1. See, e
. g
. , United States v. Reyes-Serna , Nos. 11- 41241, 11-41242, 2 013 WL 323068, at *1 (5th Cir. Jan. 2 8 , 2 0 1 3 ) (per curiam) (unpublished) (dis t r i c t c ourt’s statements that sentence was “ necessary to protect the public,” and that defendant “w a s not welcome in the U n ited States,”

were “sufficient to justify t h e i m position of supervised release”). H ence, we assume, without decidi n g , that the plain error did affect Chavez-Trejo’s substantial rights. 3 On the assumption t h a t C havez-Trejo has demonstrated a “reasonable probability that, but f

or the district court’s misapplication of the Guidelines, he would have r eceived a lesser sentence,” B lo c k er , 612 F.3d at 416 (internal quotation marks omitted), we nevertheless decline to exercise our discretion to correct the plain e rror because the error does n o t “seriously affect[] the integrity and fundamental fairness of judicial proceedings,” Garcia-Quintanilla , 574 F.3d

a t 304. “[E]ven if an increase in a sentence [can] be seen a s inevi t ab l y ‘substantial’ in one s ense it does not inevitably affect the fairness, integrity, or public reputation of j udicial process and proceedings.” United States v. Ell i s , 564 F.3d 370, 378–79 (5th C ir. 2009); s ee a lso United States v. Davis , 602 F.3d 643,

3 We recognize that this court recently f ound that a d is trict court’s cons id eration of d eterrence is s uf

f icient to rem ed y ignorance of §5D 1. 1( c) if the dis trict jud ge’s com m ents “ind icate i m

p l i ci t consi dera ti on of the deterrent ef fect of [s up ervis ed releas e]

. ” U ni ted Sta tes v
. Ca nci no- Tri ni da d , 11- 41344, 2013 WL 869047 (5th Ci r
. M a r
. 8 , 2013) ( em p has is ad d ed)

. In Ca nci no- Tri ni da d , how ever, the s entencing cou r t exp res s ly s tated that it w as “trying to k eep [ the d ef

end ant] f

rom com ing back , ” i d. at *3, w hereas here the d is trict court only w arned Chavez- Trejo of the ef f ect of s up ervis ed releas e s hould he illegally reenter the country. The d is trict court never sugges ted that it w as im pos ing s up ervis ed releas e beca use of thos e ef f ects

. Ins tead , it d es cribed sup ervis edreleas e as “a requirem ent of the law

. ” 6 Case: 12-40006 Document: 00512196303 Page: 6 Date Filed: 04/03/2013No. 12-40006

652 ( 5th Cir. 2010) (plain e rror test “requires both a showing o f e f f e c t o n the appellant’s substantial rights and an effect o n the fairness o r integrity of the proceedings before this court may exercise its discretionto remedy the error”). Chavez-Trejo does not explain why a decision not to e xercise our discretion in this case would s eriously affect the fairness, i ntegrity, or public reputation of judicial p roceedings. See Y ohey v. C

ollins , 985 F.2d 222, 224–25 ( 5th Cir. 1993) (issues not adequately briefed are abandoned); United States v. Garcia-Lemus , No. 1 2-40353, 2013 WL 323080, at *1 (5th Cir. J an. 28, 2013) ( p e r c u riam) (unpublished) (no plain error shown where d e f e n d ant m ade “no attempt to demonstrate w hy [the failure to explain reasons for imposing supervised release]

. . . would seriously affect the fairness, integrity, o r p ublic reputation of judicial proceedings”). Whether supervised release is imposed or not also does not now i m p a c t C h avez-Trejo himself and it may never do so. A s the district court observed in sentencing Chavez-Trejo, “you’re supposed to be in M exico and

we cannot supervise you in M exico. So if you stay there like you’re supposed to, [supervised release] doesn’t mean a thing.” See United S t a tes v. NavarreteRembao , No. 12-40252, 2013 WL 220776, at *1 (5th Cir

. J a n
. 21, 2013) (per curiam) (unpublished) (“If [defendant] is deported again, supervised release will have n o practical effect on him.”). Chavez-Trejo a lso affirmed th at “[t]his is the last time. I’m not going to come back. I already have another family in Mexico.” We thus are unpersuaded that the district c o urt’s procedural plain e rror in this

case affects the fairness, integrity, o r public reputation of judicial p roceedings such that r emand is warranted. See United States v. Jones , 489 F.3d 6 79, 682 (5th Cir. 2007) (assuming there was reasonable probability that sentence would be decreased o n remand, but finding that sentencing error d i d not s eriously affect fairness , i n t e g rity, or public reputation of j udicial proceedings where district court exercised diligent effort at sentencing hearing , n o twithstanding its unnecessary discussion of defendant’s arrest record).

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We also are unpersuaded by Chavez- T r ej o’s argument that his s entence

was substantively u n r e a s o n able because “the sentence does not account for a factor that should receive significant w eight,” United States v. C ooks , 589 F.3d 173, 186 (5th C ir
. 2 0 0 9)

—h e r e , th e G u i d e li n e s ’ r ecommendation that “ordinarily”

a term of sup e rv ised release should not be imposed on deportable aliens. Because the three-year term of supervised release was within the recommended Guidelines range, it is p r e s umed reasonable, see United States v. Alonzo , 435 F.3d 5 51, 554 (5th Cir. 2006), and we infer that the district c o urt considered all pertinent sentencing considerations, see United States v. Mares , 402 F

. 3d 511, 519 (5th Cir. 2005). Chavez-Trej o h a s not overcome that presumption and, as discussed above, we also do n ot view this c ase as i m plicating the f a i r n ess and integrity of judicial proceedings. For the foregoing reasons, we AFFIRM the sentence.

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