United States v. Pablo Dominguez-Alvarado
2012 U.S. App. LEXIS 19178
| 5th Cir. | 2012Background
- Dominguez-Alvarado, a Mexican citizen, pleaded guilty to unlawful presence after removal under 8 U.S.C. § 1326.
- PSR set offense level 21 and criminal history II, yielding a guideline imprisonment range of 41–51 months.
- Applicable supervised release range in the PSR was 2–3 years.
- Second Addendum (Nov. 1, 2011) adjusted the supervised release range to 1–3 years and quoted § 5D1.1(c) guidance for deportable aliens.
- District court sentenced him to 46 months’ imprisonment followed by 3 years of supervised release; he objected to the imprisonment length and to the supervised release as an upward departure.
- The panel holds the sentence is not error and affirms, remanding for judgment amendment to conform to the oral sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 5D1.1(c) supports the three-year supervised release term | Dominguez-Alvarado argues ordinarily no supervised release for deportable aliens. | Dominguez-Alvarado contends the word 'ordinarily' is hortatory and allows discretion to impose when warranted. | No error; district court lawfully imposed 3 years under discretion permitted by § 5D1.1(c). |
| Whether failure to provide additional written justification constitutes plain error | Dominguez-Alvarado seeks explicit factual findings for the supervised release decision. | Court’s particularized remark at sentencing suffices; Rule 32 issues are not met for plain error. | Not plain error; no need to remand for additional written findings. |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (U.S. 2007) (two-step reasonableness review of sentencing)
- Mondragon-Santiago, 564 F.3d 357 (5th Cir. 2009) (plain-error review when objections are insufficiently raised)
- Hooten, 942 F.2d 878 (5th Cir. 1991) (need for clear record and factual determinations under Rule 32)
- Hernandez-Martinez, 485 F.3d 270 (5th Cir. 2007) (requirement to alert district court to issues to preserve appeal)
- Rodriguez, 15 F.3d 408 (5th Cir. 1994) (notice and opportunity to correct error on appeal)
- Olano, 507 U.S. 725 (U.S. 1993) (four-part plain-error test)
- Infante, 404 F.3d 376 (5th Cir. 2005) (application of plain-error standard in sentencing)
- Rayo-Valdez, 302 F.3d 314 (5th Cir. 2002) (guidelines commentary binding when not inconsistent with text)