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

No. 12-50786 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. MANUEL ALONZO-LLANAS, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 6:12-CR-98-1

Before BENAVIDES, CLEMENT, and OWEN, Circuit Judges. PER CURIAM: * Manuel Alonzo-Llanas pleaded guilty to one c o unt of illegal reentry. The district court s entenced h im to 60 months in prison, within the guidelines range of 57 t o 71 months, to be followed by three y ears of supervised release. AlonzoLlanas appeals, contending that t he district court erred by imposing supervised release in light of § 5 D1.1(c) of the United States Sentencing G uidelines. As he concedes, because he did not object in the district court, our review is for plain 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 Septem ber 6, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should 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: 12-50786 Document: 00512365082 Page: 1 Date Filed: 09/06/2013No. 12-50786

error. See United States v. Dominguez-Alvarado , 695 F.3d 324, 327-28 (5th Cir. 2012). For the following reasons, we affirm. Section 5D1.1(c), which took e ffect before Alonzo-Llanas w a s sentenced, provides that a court ordinarily should not i mpose s upervised release if it is not statutorily required and t he defendant i s a d e portable alien who likely will be deported following imprisonment. The cour t retains discretion to impose supervised release if it woul d “provide an added measure of d eterrence and protection based on the facts and circumstances of a particular case.” § 5D1.1, comment. (n.5); Dominguez-Alvarado , 695 F.3d at 328. Although stating that it relied on the 2011 Guidelines Manual, w hich contain s § 5 D 1 .1(c), the presentence report cited the prior version of § 5D1.1. There is no indication that the district court w as aware of or considered § 5 D1.1(c). Thus, we agree with Alonzo-Llanas t hat the district court c ommitted error and that t he error was clear or obvious. See United States v. Cancino-Trinidad , 710 F.3d 601, 606 (5th Cir. 2013). Alonzo-Llanas must also show a n effect on his s ubstantial rights, i.e., that there is a reasonable probability that, but for the error, the district court would not have imposed a supervised release term. See Cancino-Trinidad , 710 F.3d at 606. His criminal history, w hich i n cluded two convictions f or aggravated assault with a d eadly weapon, support a c onclusion that supervised release will provide added protection. See § 5D1.1, comment. (n.5); Cancino-Trinidad , 710 F.3d at 606. F u r t h e r, there is no indication in t he record whether the district court likely would h ave reached a different result if it h ad been applying the correct version of the Guideline. See, e.g., United States v. Mares , 402 F

. 3d 5 11, 521-22 (5th Cir. 2005) ( employing similar analysis in context of sentencing under mandatory rather than advisory guidelines regime). These facts weigh against a conclusion that Alonzo-Llanas’s substantial rights were affected. We n eed not reach t hat iss u e, however, a s we conclude t hat even if the first three prongs of the plain e rror test are satisfied, the error d oes not s eriously
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affect the fai rness, integrity, or public reputation of judicial proceedings. See Puckett v . United States , 556 U.S. 129, 135 (2009). The district c ourt had discretion to impose supervised release, notwithstanding § 5D1.1(c)’s guidance against i t. See Dominguez-Alvarado , 695 F.3d at 329. In addition, AlonzoLlanas will not be subject to supervision i f he does not return to this country illegally, which he promised the district court he would not do. Thus, the error does not warrant the exercise of our discretion to correct it. AFFIRMED.

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