USA v. Francisco Azcona-Polanco

Filing

PRECEDENTIAL OPINION Coram: AMBRO, VANASKIE and RESTREPO, Circuit Judges. Total Pages: 13. Judge: RESTREPO Authoring. [-Document edited to include Mark Coyne, Esq. as Appellee's counsel. Notice is being resent.]--[Edited 07/27/2017 by CJG]

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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-3478
_____________
UNITED STATES OF AMERICA
v.
FRANCISCO TEODORO AZCONA-POLANCO

Francisco Azcona-Polanco,
Appellant
______________
Appeal from the United States District Court
for the District of New Jersey
(D.N.J. No. 1-15-cr-00504-001)
District Judge: Honorable Robert B. Kugler
_____________
Submitted Under Third Circuit LAR 34.1(a)
March 28, 2017
______________
Before: AMBRO, VANASKIE and RESTREPO,
Circuit Judges.

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(Filed: July 27, 2017)
______________
Christopher O’Malley
Office of Federal Public Defender
800-840 Cooper Street, Suite 350
Camden, NJ 08102,
Counsel for Appellant
Paul J. Fishman
Mark E. Coyne
Desiree L. Grace
Office of United States Attorney
970 Broad Street
Newark, NJ 07102
Counsel for Appellee
______________
OPINION OF THE COURT
______________
RESTREPO, Circuit Judge.
Deportable immigrants are presumptively exempt from
the discretionary imposition of supervised release under
Section 5D1.1(c) of the Sentencing Guidelines. Appellant
Francisco Azcona-Polanco, a deportable immigrant, argues
that the District Court committed a procedural sentencing
error by sentencing him to a term of supervised release
without an adequate explanation. We write to clarify the
procedural obligations of a district court under Section

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5D1.1(c). Azcona-Polanco also challenges his sentence of
imprisonment as substantively unreasonable. On both claims,
we will affirm.
I
Azcona-Polanco, a citizen of the Dominican Republic,
was admitted to the United States as a lawful permanent
resident in 1972. In 1994, he was ordered removed based
upon a conviction for heroin distribution, but never left the
country.
In 1997, Azcona-Polanco was convicted of
conspiracy to violate federal narcotics laws and sentenced to
168 months’ incarceration. He was deported at the expiration
of his federal sentence in 2009, but thereafter reentered the
United States illegally and assumed an alias, having
purchased a citizen’s birth certificate and Social Security
card.
Azcona-Polanco was arrested and later pled guilty to
illegal reentry, 8 U.S.C. §§ 1326(a) and (b)(2).
His
sentencing range was 41 to 51 months. The Guideline range
for a term of supervised release was 1 to 3 years, U.S.S.G.
§ 5D1.2(a)(2), with a statutory maximum of 3 years,
18 U.S.C. § 3583(b)(2).1 Azcona-Polanco, however, was
presumptively exempt from supervised release under Section
5D1.1(c) because he is a deportable immigrant. U.S.S.G.
§ 5D1.1(c). At least two documents submitted to the District

1

All references to the Sentencing Guidelines refer to
the 2015 edition of the Guidelines Manual. See U.S.S.G.
§ 1B1.11(a) (“The court shall use the Guidelines Manual in
effect on the date that the defendant is sentenced.”).

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Court noted this presumption: the Presentence Investigation
Report and Azcona-Polanco’s sentencing memorandum.
The District Court sentenced Azcona-Polanco to 41
months’ imprisonment and 3 years’ supervised release. As to
the term of supervised release, the Court stated, “Now clearly
I understand that he’s going to be deported . . . , and if he
follows the law and does not reenter the United States, he
obviously will never have to report on a regular basis to
Probation. Nevertheless I’m imposing this condition in case
he does illegally reenter the United States he must report in
person to Probation.” App. 71. The District Court also stated
generally that “[t]here is obviously a need for specific
deterrence because he keeps coming back when he’s been
told not to come back.” App. 70. Azcona-Polanco did not
object to the imposition of supervised release.
II
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742.
We review Azcona-Polanco’s claim that the District
Court committed a procedural sentencing error for “plain
error” because he failed to object in the District Court.
Fed. R. Crim. P. 52(b). The plain error test requires (1) an
error; (2) that is “clear or obvious” and (3) “affected the
defendant’s substantial rights, which in the ordinary case
means he or she must ‘show a reasonable probability that, but
for the error,’ the outcome of the proceeding would have been
different.” Molina-Martinez v. United States, 136 S. Ct.
1338, 1343 (2016) (quoting United States v. Dominguez

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Benitez, 542 U.S. 74, 76, 82 (2004)). If these conditions are
met, we will exercise our discretion to correct the error if it
“seriously affects the fairness, integrity or public reputation of
judicial proceedings.” Id. (quoting United States v. Olano,
507 U.S. 725, 736 (1993)). We review Azcona-Polanco’s
claim that his sentence of imprisonment is substantively
unreasonable for abuse of discretion. Gall v. United States,
552 U.S. 38, 51 (2007).
III
A
At sentencing, a district court conducts a familiar,
three-step procedure. First, it calculates the applicable
Guideline range. Second, the court rules on any motions for
departure. Third, after considering the parties’ arguments and
the Section 3553(a) factors, it determines the appropriate
sentence, which may vary from the Guideline range. United
States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006).
A district court must impose a term of supervised
release where required by statute or, as here, may do so in the
exercise of its discretion. 18 U.S.C. § 3583(a); see also
U.S.S.G. § 5D1.1; U.S.S.G. § 5D1.1, cmt. n.1. When
determining whether to impose a discretionary term of
supervised release, it considers certain Section 3553(a)
factors. 18 U.S.C. § 3583(c) (citing 18 U.S.C. § 3553(a)(1),
(a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and
(a)(7)); see also U.S.S.G. § 5D1.1, cmt. n.3.
Deportable immigrants are presumptively exempt from
the discretionary imposition of supervised release per a 2011

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amendment to the Sentencing Guidelines. U.S.S.G. Supp.
App. C, Amend. 756. This amendment created Section
5D1.1(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).
The commentary to Section 5D1.1(c) reiterates the
presumption against supervised release, explains its rationale,
and provides circumstances in which supervised release may
be warranted:
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

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and protection based on the facts
and circumstances of a particular
case.
U.S.S.G. § 5D1.1(c), cmt. n.5.
In adopting Section 5D1.1(c), the Sentencing
Commission noted that “recent changes in our immigration
law have made removal nearly an automatic result for a broad
class of noncitizen offenders.” U.S.S.G. Supp. App. C,
Amend. 756, Reason for Amendment (quoting Padilla v.
Kentucky, 559 U.S. 356, 366 (2010)). While supervised
release is not “automatically extinguished by deportation,”
United States v. Williams, 369 F.3d 250, 253 (3d Cir. 2004),
the Sentencing Commission concluded that ordinarily
“imposing supervised release on a removable defendant is
both unnecessary and undesirable.”
United States v.
Zamudio, 718 F.3d 989, 991 (7th Cir. 2013) (citing U.S.S.G.
Supp. App. C, Amend. 756).2
B
This Court reviews a district court’s sentence via a
two-step process. We begin by determining whether a district
court committed a “procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
2

The Seventh Circuit also noted that the imposition of
supervised release on deportable immigrants may “burden
probation officers.” Zamudio, 718 F.3d at 991.

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sentence.” United States v. Tomko, 562 F.3d 558, 567 (3d
Cir. 2009) (en banc) (quoting Gall, 552 U.S. at 51). If we
identify a procedural error, we will generally remand for
resentencing without going further. United States v. MateoMedina, 845 F.3d 546, 550 (3d Cir. 2017). If the district
court’s sentence is procedurally sound, we review it for
substantive reasonableness. Tomko, 562 F.3d at 567.
Azcona-Polanco asserts a specific type of procedural
error—that the District Court “fail[ed] to adequately explain
the chosen sentence.” Id. (quoting Gall, 552 U.S. at 51). A
district court is required to “state in open court the reasons for
its imposition of the particular sentence.”
18 U.S.C.
§ 3553(c). In explaining a sentence, a “judge should set forth
enough to satisfy the appellate court that he has considered
the parties’ arguments and has a reasoned basis for exercising
his own legal decisionmaking authority.” Rita v. United
States, 551 U.S. 338, 356 (2007). Although there is no
“uniform threshold,” this explanation must be “sufficient for
us to see that the particular circumstances of the case have
been given meaningful consideration within the parameters of
§ 3553(a).” Tomko, 562 F.3d at 567 (citation omitted).
The requirement that a district court provide an
adequate explanation applies to supervised release. See
United States v. Joline, 662 F.3d 657, 659-60 (3d Cir. 2011).
For example, we have repeatedly held that a district court
must explain its reasons for imposing special conditions of
supervised release. United States v. Paladino, 769 F.3d 197,
203 n.6 (3d Cir. 2014); United States v. Murray, 692 F.3d
273, 283 (3d Cir. 2012); United States v. Albertson, 645 F.3d
191, 200 (3d Cir. 2011); United States v. Miller, 594 F.3d
172, 184 (3d Cir. 2010); United States v. Loy, 191 F.3d 360,

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371 (3d Cir. 1999); see also 18 U.S.C. § 3583(d); U.S.S.G.
§ 5D1.3. Specifically, a district court “must state the reasons
in open court for imposing a particular special condition so
that the appellate court is not left to speculate about the
reasons.” Albertson, 645 F.3d at 200 (quoting Miller, 594
F.3d at 184).
A district court’s explanation serves, inter alia, three
substantive ends. First, an adequate explanation “promote[s]
the perception of fair sentencing.” Gall, 552 U.S. at 50. As
the Supreme Court has observed, “[j]udicial decisions are
reasoned decisions. Confidence in a judge’s use of reason
underlies the public’s trust in the judicial institution. A public
statement of those reasons helps provide the public with the
assurance that creates that trust.” Rita, 551 U.S. at 356; see
also United States v. Grier, 475 F.3d 556, 572 (3d Cir. 2007)
(en banc). Second, an adequate explanation is necessary for
our Court to conduct “meaningful appellate review” for
substantive reasonableness. Gall, 552 U.S. at 50; see also
United States v. Merced, 603 F.3d 203, 216 (3d Cir. 2010).
Third, “procedural requirements,” including an adequate
explanation, “exist to guide the [district court’s] exercise of
discretion.” Merced, 603 F.3d at 215 (alteration in original)
(citation omitted). A district court’s procedural error may
lead to a substantively unreasonable sentence. Id.; see also
United States v. Olhovsky, 562 F.3d 530, 553 (3d Cir. 2009).
C
This Court has not yet addressed the parameters of an
adequate explanation under Section 5D1.1(c). We now hold
that, as with special conditions of supervised release, a district
court must “explain and justify” the imposition of supervised

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release on a deportable immigrant. Murray, 692 F.3d at 281.
It “must state the reasons in open court for imposing a [term
of supervised release on a deportable immigrant] so that the
appellate court is not left to speculate about the reasons.”
Albertson, 645 F.3d at 200 (citation omitted).
This
explanation “should directly address” the presumption against
imposing supervised release “and provide the court’s
reasoning for taking a different course of action in the case
before it.” United States v. Solano-Rosales, 781 F.3d 345,
353-54 (6th Cir. 2015). The court, however, need not “cite
the guidelines section,” but rather should “acknowledge and
address” its substance. Id. at 354.
In adopting this approach to Section 5D1.1(c), we
follow the recent decision of the Sixth Circuit in SolanoRosales. We recognize, as did that Court, id. at 354 n.1, that
other Circuits have stopped short of requiring a district court
to refer explicitly to the presumption against imposing
supervised release on a deportable immigrant. See, e.g.,
United States v. Aplicano-Oyuela, 792 F.3d 416, 424 (4th Cir.
2015); United States v. Alvarado, 720 F.3d 153, 158 (2d Cir.
2013) (per curiam); United States v. Dominguez-Alvarado,
695 F.3d 324, 329-30 (5th Cir. 2012). Although this may be
a “close question,” we agree with the Sixth Circuit that
“clarity is better served by a direct discussion” of the
presumption against supervised release and the reasons for
nevertheless imposing it. Solano-Rosales, 781 F.3d at 354
n.1; see also Alvarado, 720 F.3d at 158 (encouraging but not
requiring district courts to provide an explicit explanation
“for the sake of clarity”).
Requiring an explicit explanation under Section
5D1.1(c) promotes all three of the substantive ends described

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above. It assures the public that the decision to impose
supervised release was a “reasoned decision[]” rather than the
force of habit. Rita, 551 U.S. at 356. Indeed, the Sentencing
Commission created Section 5D1.1(c) in response to data that
district courts were imposing supervised release “in more
than 91 percent of cases in which the defendant is a noncitizen,” a “high rate” that the Commission deemed
“unnecessary.” U.S.S.G. Supp. App. C, Amend. 756, Reason
for Amendment. In addition, a district court’s adequate
explanation will allow us to conduct “meaningful”
substantive review of Section 5D1.1(c) cases (or render those
appeals unnecessary). Gall, 552 U.S. at 50. Relatedly,
providing an explanation under Section 5D1.1(c) will “guide”
a district court to impose supervised release on a deportable
immigrant only when doing so is substantively reasonable.
Merced, 603 F.3d at 215.
As a practical matter, we reiterate that the procedure
we adopt today is already required in the supervised release
context. It is what we require when a district court imposes
special conditions of supervised release. Paladino, 769 F.3d
at 203 n.6; Murray, 692 F.3d at 283; Albertson, 645 F.3d at
200; Miller, 594 F.3d at 184; Loy, 191 F.3d at 371. As
explained above, it should “state the reasons in open court for
imposing a particular special condition.” Albertson, 645 F.3d
at 200 (quoting Miller, 594 F.3d at 184). Given this wellestablished principle, a sentencing court will have no practical
difficulty providing reasons under Section 5D1.1(c).
D
Azcona-Polanco failed to object in the District Court
to the imposition of a term of supervised release. As such, we

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review for plain error his claim that it committed a procedural
error by sentencing him to a term of supervised release
without an adequate explanation under Section 5D1.1(c). As
did the Sixth Circuit in Solano-Rosales, we will assume
arguendo that there was a clear or obvious error—an issue we
need not decide—because any error did not affect AzconaPolanco’s substantial rights. See Solano-Rosales, 781 F.3d at
354. Under Section 5D1.1(c), a district court is permitted to
impose a term of supervised release on a deportable
immigrant “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(c),
cmt. n.5. In Azcona-Polanco’s case, any supposed deficiency
in the explanation would not have affected his substantial
rights given all of the facts cited by the District Court, e.g.,
his serious criminal history; that he previously defied an order
of removal; that he was ordered removed a second time; that
after being deported he illegally reentered the United States;
and that he purchased false identification and assumed an
alias to remain in the United States illegally. Thus we will
affirm the term of supervised release entered by the District
Court.3
IV
Azcona-Polanco also challenges as substantively
unreasonable the District Court’s sentence of imprisonment.
This argument fails. The Court sentenced Azcona-Polanco to
To the extent Azcona-Polanco’s brief could be
construed to raise a claim of substantive error with regard to
the supervised release portion of his sentence, we would
affirm for the same reasons.
3

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41 months’ incarceration—the bottom of the Guideline range.
As explained above, it considered Azcona-Polanco’s history
of drug trafficking; that he was twice ordered removed from
the United States; the nature of the current offense; and his
use of an illegally-purchased birth certificate and Social
Security card. The District Court conducted “the type of
individualized assessment that Gall demands, and to which
we must defer.” Tomko, 562 F.3d at 575.
V
The judgment of the District Court is affirmed.

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