US v. Juan Xutuc-Lopez

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:12-cr-00391-NCT-1 Copies to all parties and the district court/agency. [999251879].. [13-4268]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4268

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN MANUEL XUTUC-LOPEZ, a/k/a Juan Manuel Xutuc,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
N. Carlton Tilley,
Jr., Senior District Judge. (1:12-cr-00391-NCT-1)

Submitted:

November 26, 2013

Decided:

December 4, 2013

Before MOTZ, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mark H. Allenbaugh, LAW OFFICES OF MARK H. ALLENBAUGH, Wickliff,
Ohio, for Appellant.
Kyle David Pousson, Ripley Eagles Rand,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Juan Manuel Xutuc-Lopez pleaded guilty without a plea
agreement

to

illegal

violation

of

8

reentry

U.S.C.

by

§ 1326(a),

an

aggravated

(b)(2)

felon,

in

and

was

(2012),

sentenced to twenty-seven months’ imprisonment, followed by a
three-year term of supervised release.

On appeal, Xutuc-Lopez

contends that the district court plainly erred by imposing a
term of supervised release as part of his sentence.

We affirm.

Xutuc-Lopez concedes that the standard of review is
plain error, as he raises this issue for the first time on
appeal.
2002).

United States v. Maxwell, 285 F.3d 336, 339 (4th Cir.
The Sentencing Guidelines provide that sentencing courts

ordinarily should not impose a term of supervised release for an
alien who
Sentencing
Commentary

is

likely

to

Guidelines
to

that

be

deported

Manual

provision

post-imprisonment.

(“USSG”)
suggests

§ 5D1.1(c)
the

reason

U.S.
(2012).

for

this

general policy — if the defendant is out of the country, there
is no need for supervision, and if he returns illegally, a new
prosecution will provide the necessary security and deterrence.
USSG § 5D1.1 cmt. n.5.

The application note continues, “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.”
2

Id.

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Here, the district court did not specifically discuss
its reasons for imposing a term of supervised release, but it
did consider the 18 U.S.C. § 3553(a) (2012) factors in handing
down its sentencing determination.
Xutuc-Lopez’s

prior

felony

The district court noted

conviction

and

the

fact

that

he

returned to the United States, remaining here for approximately
three years before his arrest.
Our

plain

error

review

authority to remedy an error.
U.S. 129, 134 (2009).
“obvious,”

strictly

circumscribes

our

Puckett v. United States, 556

A “plain” error is one that is “clear” or

United States v. Olano, 507 U.S. 725, 731-32 (1993),

under “the settled law of the Supreme Court or this circuit.”
United States v. Carthorne, 726 F.3d 503, 516 (4th Cir. 2013)
(internal quotation marks omitted).

This assessment is made at

the time of review.

Henderson v. United States, 133 S. Ct.

1121, 1124-25 (2013).

We recognize that both the Supreme Court

and this court have clear precedent requiring a district court
to explain the particular reasons for its chosen sentence as
required by 18 U.S.C. § 3553(c) (2012).

Rita v. United States,

551 U.S. 338, 356 (2007); United States v. Carter, 564 F.3d 325,
328, 330 (4th Cir. 2009).
here,

5D1.1(c)

and

application note 5, has not been so definitively resolved.

See

United

concerning

But the specific issue presented

States

v.

sentencing

under

Bautista-Villanueva,
3

USSG

No.

§

12-4828,

2013

WL

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6098425,

at

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*4,

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*5

Nov.

(4th

Cir.

21,

2013)

(per

curiam)

(unpublished) (Niemeyer, J., dissenting) (collecting cases).
In the absence of clear authority on the issue raised
by Xutuc-Lopez, he has failed to show that the district court
plainly
release.

erred

by

imposing

a

three-year

We accordingly affirm.

term

of

supervised

We dispense with oral argument

because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED

4