IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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:*

Defendant-Appellant Margarito Chavez-Trejo, a citizen of Mexico, pleaded

guilty to illegal reentry following deportation in violation of 8 U.S.C. § 1326. The

presentence report (“PSR”), prepared on November 3, 2011, and applying the

2011 edition of the Sentencing Guidelines, calculated his total offense level to be

22 with a criminal history category of III, resulting in a recommended

Sentencing Guidelines range of 51 to 63 months.

Effective November 1, 2011, Guidelines § 5D1.1, “Imposition of a Term of

United States Court of Appeals

Fifth Circuit

F I L E D

April 3, 2013

Lyle W. Cayce

Clerk

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

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

R. 47.5.4.

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Supervised Release,” was amended to add subsection (c), which provides: “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.” U.S.S.G.

§ 5D1.1(c) (2011). The commentary accompanying § 5D1.1(c) states: 

Application of Subsection (c). —In a case in which the defendant is

a deportable alien specified in subsection (c) and supervised release

is not required by statute, the court ordinarily should not impose a

term of supervised release. 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 cmt. n.5.1

Although the PSR contained an accurate recitation of § 5D1.1, in the

immediately preceding paragraph, the PSR also advised:

Guideline Provisions: The guideline range for a term of

supervised release is at least 1 year but not more than 3 years,

pursuant to U.S.S.G. § 5D1.2(a)(2). If a sentence of imprisonment

of 1 year or less is imposed, a term of supervised release is not

required but is optional, pursuant to U.S.S.G. § 5131.1(b).

Supervised release is required if the Court imposes a term of

imprisonment of more than 1 year, pursuant to U.S.S.G. § 5D1.1(a).

This was an inaccurate summary of § 5D1.1, which further provides that

“[t]he court 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 Guidelines commentary is equivalent in force to the Guidelines language itself as long

as the language and the commentary are not inconsistent. United States v. Rayo-Valdez, 302

F.3d 314, 318 n.5 (5th Cir. 2002) (citing Stinson v. United States, 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 term of at least one year, but not more than three years.

Chavez-Trejo did not file objections to the PSR but requested a downward

variance from the Guidelines range. The district court imposed a

below-Guidelines sentence of 40 months of imprisonment. It also imposed 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 sentence you to 40 months, Mr.

Chavez-Trejo. Hopefully -- well, you’ve been through this before. 

Hopefully, you will not serve the full amount of time. I doubt you

served -- I doubt you served a full 50 months back in 2004. Because

you’re entitled to get credit for good behavior and 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 put on supervised release again. 

You’ve been through this again, but -- it’s a requirement of the law,

but it also -- we cannot supervise you anyway. Because you’re

supposed to be in Mexico and we cannot supervise you in Mexico. 

So if you stay there like you’re supposed to, it doesn’t mean a thing. 

But if we see you again in this country, whether it’s to visit the first

family, or some other family, or just to shop, or pray, or whatever,

the minute you step foot here, you’re committing a crime again. So

if you’re caught 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 wait three years, you’ll always be facing the new

charges. You don’t have papers. Just looking at this, it’s not likely

you’re ever going to get real papers, valid papers. And so you just

need to -- no matter what kind of excuses or problems you think you

have in Mexico, the best advice I can give you is go South. Go to the

interior of Mexico, or go to Central America, or go to Brazil, or

somewhere. But don’t come here. Because you’re just announcing

that you would like to go back to prison again.

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On appeal, Chavez-Trejo argues that the district court procedurally and

substantively plainly erred in imposing a term of supervised release.2 Plain

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

or obvious; (3) the error affected the defendant’s substantial rights; and (4) this

court should exercise its discretion to correct the error in order to prevent a

manifest miscarriage of justice. United States v. Olano, 507 U.S. 725, 732–37

(1993); see United States v. Infante, 404 F.3d 376, 394 (5th Cir. 2005). This court

retains discretion to correct reversible plain error, but will do so “only if the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Puckett v. United States, 556 U.S. 129, 135 (2009) (internal

quotation marks and alterations omitted).

The district court’s statement that supervised release was “a requirement

of the 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 United States v.

Martinez-Berrios, No. 12-40041, 2012 WL 6634605, at *1 (5th Cir. Dec. 21, 2012)

(per curiam) (unpublished) (error was clear or obvious where there was “no

indication that the district court accounted for or considered § 5D1.1(c)”).

Whether this error affected Chavez-Trejo’s substantial rights is a closer

question. The government points to Chavez-Trejo’s criminal history and two

prior deportations and argues that, to the extent there was plain error, the error

did not “increase[] the term of a sentence, such that there is a reasonable

probability of a lower sentence on remand.” United States v. Garcia-Quintanilla,

574 F.3d 295, 304 (5th Cir. 2009). The government further argues that the

sentencing transcript reveals that the district court imposed a term of

2 Chavez-Trejo also contends that the district court plainly erred by not giving notice

before departing from the Guidelines, but concedes in his reply brief that this argument is

foreclosed by our intervening decision in United States v. Dominguez-Alvarado, 695 F.3d 324,

329 (5th Cir. 2012).

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supervised release because it believed doing so “would provide an added measure

of deterrence and protection based on the facts and circumstances of [this]

particular case.” U.S.S.G. § 5D1.1 cmt. n.5.

We understand these arguments to be related. To the extent the district

court acted out of a desire to deter Chavez-Trejo, it is less likely that the district

court would impose a lower sentence on remand. Conversely, the case for

remand becomes stronger if the district court’s sentence was based 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. 

We note, first, that the district court imposed a below-Guidelines sentence. 

In so doing, the district court identified multiple grounds for leniency, including,

inter alia, that Chavez-Trejo “[is] the father of six children” who are U.S.

citizens. This suggests that a remand to resentence under a correct

understanding of § 5D1.1 might result in a sentence without supervised release. 

Next, we observe that the one ground under § 5D1.1(c) that would justify

the imposition of supervised release—deterrence—is not clearly in evidence. See

U.S.S.G. § 5D1.1 cmt. n.5. The district court did not so much as mention

§ 5D1.1. While we have upheld sentences in numerous cases in which the

district court failed to discuss § 5D1.1, we did so because the courts based their

imposition of supervised release on deterring future conduct. See, e.g., United

States v. Lara-Espinoza, 488 F. App’x 833, 835 (5th Cir. 2012) (per curiam)

(unpublished) (“[I]t is in [the] strong societal interest to deter individuals who

engaged in the kind of crime that you were convicted of . . . .”); DominguezAlvarado, 695 F.3d at 330 (“I gave the sentence . . . to deter future criminal

conduct . . . .”). 

By contrast, here the district court did not explicitly discuss deterrence. 

Instead, in speaking to Chavez-Trejo, it observed that “we cannot supervise you

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anyway.” Possibly in a deterrence vein, the district court warned Chavez-Trejo

that “if we see you again in this country . . . . in the first three years after you get

out, you’ll get new charges, plus two more years in this case.” Having read,

indeed pored over, the entire colloquy, it is simply unclear whether deterrence

motivated the imposition of supervised release or whether, instead, it was driven

by a mistake as to § 5D1.1. See, e.g., United States v. Reyes-Serna, Nos. 11-

41241, 11-41242, 2013 WL 323068, at *1 (5th Cir. Jan. 28, 2013) (per curiam)

(unpublished) (district court’s statements that sentence was “necessary to

protect the public,” and that defendant “was not welcome in the United States,”

were “sufficient to justify the imposition of supervised release”). Hence, we

assume, without deciding, that the plain error did affect Chavez-Trejo’s

substantial rights.3

On the assumption that Chavez-Trejo has demonstrated a “reasonable

probability that, but for the district court’s misapplication of the Guidelines, he

would have received a lesser sentence,” Blocker, 612 F.3d at 416 (internal

quotation marks omitted), we nevertheless decline to exercise our discretion to

correct the plain error because the error does not “seriously affect[] the integrity

and fundamental fairness of judicial proceedings,” Garcia-Quintanilla, 574 F.3d

at 304. “[E]ven if an increase in a sentence [can] be seen as inevitably

‘substantial’ in one sense it does not inevitably affect the fairness, integrity, or

public reputation of judicial process and proceedings.” United States v. Ellis, 564

F.3d 370, 378–79 (5th Cir. 2009); see also United States v. Davis, 602 F.3d 643,

3 We recognize that this court recently found that a district court’s consideration of

deterrence is sufficient to remedy ignorance of §5D1.1(c) if the district judge’s comments

“indicate implicit consideration of the deterrent effect of [supervised release].” United States

v. Cancino-Trinidad, 11-41344, 2013 WL 869047 (5th Cir. Mar. 8, 2013) (emphasis added).

In Cancino-Trinidad, however, the sentencing court expressly stated that it was “trying to

keep [the defendant] from coming back,” id. at *3, whereas here the district court only warned

Chavez-Trejo of the effect of supervised release should he illegally reenter the country. The

district court never suggested that it was imposing supervised release because of those effects.

Instead, it described supervised release as “a requirement of the law.”

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652 (5th Cir. 2010) (plain error test “requires both a showing of effect on the

appellant’s substantial rights and an effect on the fairness or integrity of the

proceedings before this court may exercise its discretion to remedy the error”). 

Chavez-Trejo does not explain why a decision not to exercise our discretion

in this case would seriously affect the fairness, integrity, or public reputation of

judicial proceedings. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993)

(issues not adequately briefed are abandoned); United States v. Garcia-Lemus,

No. 12-40353, 2013 WL 323080, at *1 (5th Cir. Jan. 28, 2013) (per curiam)

(unpublished) (no plain error shown where defendant made “no attempt to

demonstrate why [the failure to explain reasons for imposing supervised

release] . . . would seriously affect the fairness, integrity, or public reputation of

judicial proceedings”). Whether supervised release is imposed or not also does

not now impact Chavez-Trejo himself and it may never do so. As the district

court observed in sentencing Chavez-Trejo, “you’re supposed to be in Mexico and

we cannot supervise you in Mexico. So if you stay there like you’re supposed to,

[supervised release] doesn’t mean a thing.” See United States v. NavarreteRembao, No. 12-40252, 2013 WL 220776, at *1 (5th Cir. Jan. 21, 2013) (per

curiam) (unpublished) (“If [defendant] is deported again, supervised release will

have no practical effect on him.”). Chavez-Trejo also affirmed that “[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 court’s procedural plain error in this

case affects the fairness, integrity, or public reputation of judicial proceedings

such that remand is warranted. See United States v. Jones, 489 F.3d 679, 682

(5th Cir. 2007) (assuming there was reasonable probability that sentence would

be decreased on remand, but finding that sentencing error did not seriously

affect fairness, integrity, or public reputation of judicial proceedings where

district court exercised diligent effort at sentencing hearing, notwithstanding its

unnecessary discussion of defendant’s arrest record).

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We also are unpersuaded by Chavez-Trejo’s argument that his sentence

was substantively unreasonable because “the sentence does not account for a

factor that should receive significant weight,” United States v. Cooks, 589 F.3d

173, 186 (5th Cir. 2009)—here,the Guidelines’ recommendation that “ordinarily”

a term of supervised release should not be imposed on deportable aliens. 

Because the three-year term of supervised release was within the recommended

Guidelines range, it is presumed reasonable, see United States v. Alonzo, 435

F.3d 551, 554 (5th Cir. 2006), and we infer that the district court considered all

pertinent sentencing considerations, see United States v. Mares, 402 F.3d 511,

519 (5th Cir. 2005). Chavez-Trejo has not overcome that presumption and, as

discussed above, we also do not view this case as implicating the fairness and

integrity of judicial proceedings. 

For the foregoing reasons, we AFFIRM the sentence.

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