US v. Gerson Aplicano-Oyuela

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 8:13-cr-00444-PJM-1. [999615590]. [14-4244]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4244

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GERSON ARTURO APLICANO-OYUELA, a/k/a Hershen Arturo Oulala,
a/k/a Jose Roberto Ordonez, a/k/a Franklin Maradiaga Ortiz,
a/k/a Herzan Aplicano, a/k/a Jefferson Alexander Ordonez,
Defendant – Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Peter J. Messitte, Senior District
Judge. (8:13-cr-00444-PJM-1)

Argued:

March 26, 2015

Decided:

July 7, 2015

Before NIEMEYER, KING, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Niemeyer and Judge Harris joined.

ARGUED: Julie L.B. Johnson, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant.
Nicholas Jacob
Patterson, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee.
ON BRIEF: James Wyda, Federal Public
Defender, Baltimore, Maryland, Matthew McNicoll, Law Clerk,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for
Appellant.
Rod
J.
Rosenstein,
United
States
Attorney,
Baltimore, Maryland, Kelly O’Connell Hayes, Assistant United

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States
Attorney,
OFFICE
OF
THE
Greenbelt, Maryland, for Appellee.

2

UNITED

STATES

ATTORNEY,

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KING, Circuit Judge:
Gerson

Arturo

Aplicano-Oyuela

(“Aplicano”),

a

native

and

citizen of Honduras, pleaded guilty in the District of Maryland
to an illegal reentry offense that occurred after his removal
from this country following a felony conviction.
§ 1326(a),

(b)(1).

On

March

13,

2014,

the

See 8 U.S.C.
district

court

sentenced Aplicano to sixteen months in prison and three years
of supervised release.
his

term

of

On appeal, Aplicano challenges solely

supervised

release,

contending

that

it

was

procedurally and substantively unreasonable, and that the court
failed to properly advise him with respect to supervised release
before

accepting

his

guilty

plea.

As

explained

below,

we

affirm.

I.
A.
In 2002, at the age of nineteen, Aplicano illegally entered
the

United

States

from

Honduras.

In

August

2006,

Aplicano

pleaded guilty to second-degree assault in Maryland using the
name

“Hershen

Arturo

Oulala.”

Two

years

later,

he

pleaded

guilty in Maryland to driving without a license, this time using
the alias “Gerson E. Aplicano.”

In 2011, Aplicano was convicted

of criminal mischief in Ohio under the name “Jefferson Ordonez.”
That November, Aplicano was released from state confinement into
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the custody of the Department of Homeland Security’s Immigration
and Customs Enforcement (“ICE”).

In late 2011, Aplicano was

removed to Honduras.
Almost immediately after his removal, Aplicano unlawfully
reentered
patrol

the

United

agents

in

States.

McAllen,

He
Texas,

Honduras in January 2012.

was

apprehended

however,

and

by

border

removed

to

Sometime between January 2012 and

March 2013, Aplicano again entered the United States without
authorization.

In

March

and

May

2013,

he

was

arrested

for

separate offenses in Maryland — on both occasions using the
alias “Frankin J. Maradiaga-Ortiz.”
later

dismissed,

continued.

In

Aplicano’s

late

May

Although those charges were

brushes

2013,

he

second-degree assault in Maryland.

was

with

law

arrested

enforcement
for

another

Following Aplicano’s guilty

plea on the assault charge in July of that year — under the
fictitious name “Jose Roberto Ordonez” — ICE again took custody
of

Aplicano

Aplicano’s

and

true

obtained
identity

his
by

fingerprints.

comparing

those

ICE

determined

fingerprints

to

fingerprint records in its database.
B.
By its indictment of August 26, 2013, the federal grand
jury in Maryland charged Aplicano with illegal reentry by an
alien who had previously been removed after a felony conviction,
in contravention of 8 U.S.C. § 1326(a) and (b)(1).
4

Aplicano

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initially pleaded not guilty to the indictment.

On November 22,

2013, however, Aplicano submitted a letter (the “plea letter”)
through

his

attorney

to

the

district

court,

explaining

that

(1) he “knowingly and voluntarily agreed to plead guilty” to the
single charge in the pending indictment “without the benefit of
a plea agreement”; and (2) the plea letter would “assist the
J.A. 9. 1

Court in the Rule 11 colloquy.”
that

the

“maximum

sentence”

for

the

Aplicano acknowledged

illegal

reentry

offense

includes “a period of supervised release of three (3) years.”
Id.

at

10.

According

to

the

plea

letter,

Aplicano

also

understood that
if he serves a term of imprisonment, is released on
supervised release, and then violates the conditions
of his supervised release, his supervised release
could be revoked — even on the last day of the term —
and [he] could be returned to custody to serve another
period of incarceration and a new term of supervised
release.
Id.

Aplicano signed and dated the plea letter, acknowledging

therein that “I have carefully discussed this letter with my
attorney.

I understand it, and I voluntarily agree to it.”

Id.

at 13.
The

district

December 11, 2013.

court

conducted

Aplicano’s

plea

hearing

on

Consistent with the plea letter, Aplicano

1

Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.

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pleaded guilty to the illegal reentry charge in the indictment.
Accepting Aplicano’s guilty plea, the court observed that there
was no plea agreement.

The court acknowledged receipt of the

plea letter, however, and confirmed that Aplicano had reviewed
it with an interpreter.

It advised Aplicano that, by pleading

guilty, he would be subject to the “maximum possible penalty”
for his offense, including “supervised release for a period of
three years.”

J.A. 23.

Aplicano indicated that he understood,

and his attorney agreed that the court could impose a sentence
“within its discretion.”
On

February

4,

Id. at 26.

2014,

the

probation

officer

presented

Aplicano’s presentence report (the “PSR”) to the district court.
According

to

the

PSR,

Aplicano’s

base

offense

level

for

the

illegal reentry offense was level 8, pursuant to the Sentencing
Guidelines, but it was increased by four levels as a result of
his 2006 felony assault conviction in Maryland.
§ 2L1.2(b)(1)(D)
reduced

by

two

(2012).
levels

Aplicano’s
for

offense

acceptance

resulting in a total offense level of 10.

of

See U.S.S.G.

level

was

then

responsibility,

The PSR identified

the applicable Guidelines range as ten to sixteen months, and
recommended

a

within-Guidelines

sentence

of

thirteen

months.

The PSR also indicated that the court was entitled to impose a
term of supervised release, in accordance with the following
provisions:
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Statutory Provisions:
If a term of imprisonment is
imposed, the Court may impose a term of supervised
release of not more than three years, pursuant to 18
U.S.C. § 3583(b)(2).
Guidelines Provisions:
Supervised release is required
if the Court imposes a term of imprisonment of more
than one year or when required by statute, pursuant to
U.S.S.G. § 5D1.1(a). If a sentence of imprisonment of
one year or less is imposed, a term of supervised
release is not required but is optional, pursuant to
U.S.S.G. § 5D1.1(b). The guideline range for a term of
supervised release is at least one year but not more
than three years for a defendant convicted of a Class C
felony, pursuant to U.S.S.G. § 5D1.2(a)(2).
However,
pursuant to U.S.S.G. § 5D1.1(c), 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.
J.A.

79

(emphasis

added).

Invoking

Aplicano’s

two

previous

assault convictions, the PSR recommended that the court impose a
two-year term of supervised release, in consideration of the
“safety of the community.”

Id. at 85.

On February 28, 2014, Aplicano submitted a second letter to
the district court (the “sentencing letter”), acknowledging that
he did not dispute the PSR’s calculation of his total offense
level

as

10.

Aplicano

urged

the

court,

however,

to

vary

downward from the Guidelines range of ten to sixteen months, and
specifically sought an eight-month sentence in consideration of
the sentencing factors set forth in 18 U.S.C. § 3553(a).

The

sentencing letter did not address the PSR’s recommendation of

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supervised release, and Aplicano never sought to withdraw his
guilty plea.
C.
On March 13, 2014, the district court conducted Aplicano’s
sentencing

hearing.

Neither

the

prosecution

nor

Aplicano

objected to the PSR, and the court adopted “the factual findings
and advisory guideline application in the [PSR] without change.”
J.A.

36-37.

The

government

then

argued

for

a

sentence

of

sixteen months in prison, reminding the court that Aplicano had
illegally entered the United States three times, “[t]wice after
having been convicted of a crime and thereafter deported.”
at

37.

Aplicano

urged

the

court

to

consider

his

Id.

“personal

history and characteristics,” and to impose “a sentence of eight
months or in the range of eight to ten months.”
Aplicano

maintained

imprisonment

would

that
permit

an

eight-

him

to

to

apply

Id. at 41.

ten-month
for

removal based on his family’s status in Honduras.

term

of

withholding

of

Specifically,

he explained that his family had been targeted by a Honduran
gang that had “executed his aunt, attempted to kill his cousin,”
and forced other family members into hiding.

Id.

Aplicano

suggested that a gunshot wound to his leg in 2011 — occurring

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shortly after his first removal to Honduras — was the result of
a Honduran gang attack. 2
In fashioning the sentence, the district court focused on
Aplicano’s multiple illegal entries into the United States and
predicted that he would unlawfully return to this country postremoval.

Observing

Aplicano’s

propensity

to

commit

crimes

following his illegal entries, the court further questioned why
Aplicano’s

criminal

history

should

“somehow

be

minimized

in

order to accommodate his desire to stay” in the United States.
See J.A. 49.

The court provided the following observations in

that regard:
•

“We forget the crimes, when we talk about it, we
forget the fact that he ignores the law and comes
back.” Id. at 46.

•

“I see he’s used aliases four times when he’s
been in court. . . . How is this man in any way
law abiding?
How can I believe for a moment
anything he says about his future intention?”
Id.

•

“His real problem is he comes to this country
illegally and commits crimes.
That’s what we’re
talking about. . . .
He’s broken our law again
and again.” Id. at 46-47.

2

Aplicano represented to the sentencing court that a
nonprofit organization had agreed to help him apply for
immigration relief.
He suggested that, if the court imposed a
sentence greater than ten months, the Bureau of Prisons would
relocate him to another detention facility and thereby cause him
to lose the assistance of the nonprofit organization.

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•

“[T]his is a man who is really not very
abiding when he gets here.” Id. at 48.

•

“[Y]ou violated the law twice just coming into
the country unlawfully. While you were here, you
committed
crimes,
assaults,
hurting
other
people.” Id. at 51.

•

“[I]t’s bad to come in unlawfully.
It’s bad to
commit crimes while you’re here.
The courts are
not going to stand for it.” Id. at 53.

•

“I have no reason to believe you won’t do this
again.
You [have] done it twice already.
There’s just no reason to believe you. . . .
You’ll find a reason to get back here again.”
Id.

law-

Although the district court evaluated the § 3553(a) factors
to

determine

whether

Aplicano

“merits

some

sort

of

special

solicitude,” see J.A. 51, it doubted the veracity of Aplicano’s
account of his life in Honduras, observing that other defendants
facing sentences under § 1326 have offered “the same story” as
Aplicano,

see

id.

at

52.

In

light

of

Aplicano’s

criminal

history, the court resolved to “opt in favor of protecting the
people that are [in the United States] rather than” rule in
favor

of

protecting

Aplicano.

Id.

The

court

then

advised

Aplicano that
I’m going to fashion a sentence so that if you
[illegally reenter the United States], it will be easy
to incarcerate you for a very long time. . . .
You
deserve punishment.
That’s not the main thing.
You
certainly need to be deterred, because [it] looks to
me like you’re going to try this again. No reason not
to.
And if you do, it should be easy for the
government to come back to court and easy to get a
longer sentence as well.
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Id. at 53-54.
By

its

criminal

to

sixteen

Aplicano

supervised release. 3

judgment,
months

the

in

district

prison

and

court

sentenced

three

years

of

Acknowledging that the probation officer

had “some concerns with” imposing supervised release, the court
stated

that

supervised

following reason:

release

was

appropriate

“for

the

That I think [Aplicano] may well try to get

back in the country again.”

J.A. 54.

The court instructed the

probation

Aplicano

illegally

United

officer

States,

that,

if

want

you

“I

to

obviously

file

reentered
a

petition

the
to

revoke [his supervised release] and we’ll get him in jail much
faster than if we went through a separate prosecution.”
Then,

speaking

“[U]nderstand,

directly
sir,

longer jail time.”

that
Id.

to
you

Aplicano,
will

[then]

the
face

court

Id.

warned,

substantially

Notably, Aplicano did not object to the

term of supervised release when it was imposed by the court.
Now, however, Aplicano challenges his three-year term of
supervised release on the grounds that it is procedurally and
3

According to the criminal judgment, Aplicano, as a
condition of supervised release, must “be surrendered to a duly
authorized immigration official for deportation in accordance
with established procedures provided by the Immigration and
Naturalization Act.
If ordered deported, [Aplicano] shall not
reenter the United States without express permission of the
Attorney General, or his/her designated representative.”
J.A.
67.

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substantively unreasonable, and that his guilty plea was fatally
flawed.

He

jurisdiction

timely
pursuant

noticed
to

18

this
U.S.C.

appeal,

and

§ 3742(a)

we

and

possess

28

U.S.C.

§ 1291.

II.
When a criminal defendant presents a sentencing issue that
was not properly preserved in the district court, we review the
issue for plain error only.

See United States v. Hargrove, 625

F.3d 170, 184 (4th Cir. 2010) (applying plain error review to
substantive challenges); United States v. Lynn, 592 F.3d 572,
577 (4th Cir. 2010) (applying plain error review to procedural
challenges).

Similarly, when a defendant contests the validity

of a guilty plea that he did not seek to withdraw, we also
review that challenge solely for plain error.

See United States

v. Martinez, 277 F.3d 517, 524, 527 (4th Cir. 2002).
plain

error

review,

the

defendant

must

To satisfy

establish

that:

(1) there is a sentencing error; (2) the error is plain; and
(3) the error affects his substantial rights.
v. Olano, 507 U.S. 725, 731-32 (1993).

See United States

If the three-part plain

error test is satisfied, we must decide whether to cure the
error, “and should not do so unless the error ‘seriously affects
the

fairness,

integrity

or

public

12

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of

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proceedings.’”

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Hargrove, 625 F.3d at 184 (quoting Olano, 507

U.S. at 736).

III.
In this appeal, Aplicano first contends that his three-year
term of supervised release is procedurally unreasonable because
the district court failed to specify appropriate reasons for its
imposition.

Second, Aplicano argues that the term of supervised

release is substantively unreasonable because the court relied
on

a

mistaken

premise

—

namely,

that

Aplicano

would

be

imprisoned faster if again caught illegally entering the United
States.

Finally, Aplicano asserts that his guilty plea was not

knowingly and voluntarily entered because the court failed to
advise him of the nature and consequences of supervised release.
A.
Before assessing the merits of Aplicano’s contentions, we
briefly

review

the

supervised

release

system,

including

impact on aliens facing post-incarceration removal.

its

Supervised

release is the successor to parole, which was largely eliminated
by the Sentencing Reform Act of 1984.
Buchanan,

638

“[s]upervised

448,

release

incarceration”;
confinement

F.3d

rather,

supervision

451

is

(4th

not

“it
that

a

is

a

See United States v.
Cir.

punishment
unique

fulfills
13

2011).
in

method

Notably,
lieu

of

of

post-

rehabilitative

ends,

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distinct from those served by incarceration.”
quotation marks omitted).
required

by

statute.

§ 5D1.1(a)(1).

Id. (internal

Supervised release is mandatory if
See

18

U.S.C.

§ 3583(a);

U.S.S.G.

It is also mandatory if a defendant is sentenced

to a term of imprisonment exceeding one year, with the single
exception

discussed

below.

See

U.S.S.G.

§ 5D1.1(a)(2),

(c).

Otherwise, a sentencing court may exercise discretion to impose
supervised

release.

See

18

U.S.C.

§ 3583(a).

In

each

situation, a court must consider the following § 3553(a) factors
before

imposing

supervised

release:

(1) the

nature

and

circumstances of the offense; (2) the defendant’s history and
characteristics; (3) the need to deter criminal conduct; (4) the
need to protect the community from future crimes; and (5) the
pertinent policy statements issued by the Sentencing Commission.
See id. § 3583(c).
In

2011,

the

Sentencing

Guidelines

were

amended

to

add

section 5D1.1(c), which contains the exception to the general
supervised release rules.

Section 5D1.1(c) provides that, if

supervised release is not required by statute and the defendant
is

an

“court

alien

facing

ordinarily

release.”
illegally

post-incarceration

should

U.S.S.G.
reenters

not

impose

§ 5D1.1(c).

the

United

removal,
a

term

Rather,

States

in

if

a

sentencing

of

supervised

the

defendant

contravention

of

a

condition of supervised release, “the need to afford adequate
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deterrence
served

by

and
a

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protect
new

the

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public

ordinarily

prosecution.”

Id.

is

§ 5D1.1

adequately
cmt.

n.5.

Nevertheless, the Guidelines do not foreclose the possibility of
supervised release being imposed on removable aliens.

Indeed,

if a sentencing court determines that a removable alien requires
“an

added

measure

of

deterrence

and

protection

based

on

the

facts and circumstances of a particular case,” then “[t]he court
should . . . consider imposing a term of supervised release.”
Id.
B.
We first consider whether the district court’s imposition
of the three-year term of supervised release was procedurally
unreasonable.

Aplicano

contends

that,

because

supervised

release is ordinarily discouraged for removable aliens pursuant
to Guidelines section 5D1.1(c), the court erroneously imposed
supervised

release

by

“fail[ing]

to

adequately

justification for deviating from this guideline.”

explain

its

See Br. of

Appellant 11; see also Gall v. United States, 552 U.S. 38, 51
(2007) (recognizing as procedural error the sentencing court’s
failure to “adequately explain the chosen sentence — including
an explanation for any deviation from the Guidelines range”).
We are without published authority on whether imposition of
supervised release on an alien who is likely to be removed is

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procedurally reasonable. 4

Pg: 16 of 25

Although we are mindful that such a

post-incarceration condition is “ordinarily” discouraged by the
Guidelines
section
States
2012).

for

5D1.1(c)
v.

a

removable
is

alien,

“hortatory,

Dominguez-Alvarado,

the

not

695

term

“ordinarily”

mandatory.”

F.3d.

324,

See

329

in

United

(5th

Cir.

Moreover, Application Note 5 to section 5D1.1 provides

that a sentencing court “should, however, consider” imposing a
term of supervised release in certain situations.

Accordingly,

the imposition of “supervised release is appropriate and not a
departure from the . . . Guidelines if the district court finds
that

supervised

release

would

provide

an

added

measure

of

deterrence and protection based on the facts and circumstances
of a particular case.”

United States v. Alvarado, 720 F.3d 153,

4

In our nonprecedential unpublished decisions reviewing
imposition of supervised release on aliens who are likely to be
removed post-incarceration, we have generally affirmed.
See
United States v. Jeronimo-Rodas, 583 F. App’x 122, 123 (4th Cir.
2014); United States v. Hosein, 581 F. App’x 199, 200 (4th Cir.
2014); United States v. Xutuc-Lopez, 547 F. App’x 302, 302 (4th
Cir. 2013); United States v. Deleon-Ramirez, 542 F. App’x 241,
247 (4th Cir. 2013); United States v. Cruz, 538 F. App’x 289,
290 (4th Cir. 2013); United States v. Amezquita-Franco, 523 F.
App’x 971, 974 (4th Cir. 2013); United States v. Sanchez-Mendez,
521 F. App’x 142, 144 (4th Cir. 2013); United States v.
Hernandez, 519 F. App’x 820, 823 (4th Cir. 2013); United States
v. Ramirez, 503 F. App’x 226, 227 (4th Cir. 2013); United States
v. Jimenez-Manuel, 494 F. App’x 411, 413 (4th Cir. 2012).
But
see United States v. Bautista-Villanueva, 546 F. App’x 260, 261
(4th Cir. 2013) (remanding for the sentencing court to “perform
an individualized assessment of the propriety of imposing a term
of supervised release”).

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155 (2d Cir. 2013) (internal quotation marks omitted); see also
Dominguez-Alvarado, 695 F.3d at 329.
We

are

determined
Aplicano

satisfied
that

would

that

imposing
provide

the

a

an

term

references

illegally

entering

to
the

of

added

protection for the community.
repeated

district

its

court

appropriately

supervised

measure

of

release

deterrence

on
and

At sentencing, the court made
desire

United

to

States

deter

for

a

Aplicano

fourth

continuing his pattern of committing criminal acts.

time

from
and

The court

expressed its desire to protect “the people that are here rather
than” protect Aplicano.

See J.A. 52.

The court also explained

that punishing Aplicano was “not the main thing,” suggesting
that Aplicano’s “need to be deterred” was a greater concern.
See id. at 54.

The court then informed Aplicano that it would

impose a term of supervised release “for the following reason:
That I think you may well try to get back in the country again.”
Id.

In

these

circumstances,

the

imposition

of

supervised

release was appropriate under the Guidelines.
In so ruling, we recognize that the district court failed
to specifically discuss the Guidelines or “state that supervised
release

(as

opposed

to

[Aplicano’s]

sentence

generally)

designed to provide an additional measure of deterrence.”
Alvarado, 720 F.3d at 159.
has

determined,

where

a

was
See

Nonetheless, as the Second Circuit
sentencing
17

court

(1) is

aware

of

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Guidelines
specific

Filed: 07/07/2015

section

Pg: 18 of 25

5D1.1(c);

circumstances

and

(2) considers
the

a

§ 3553(a)

defendant’s

factors;

and

(3) determines that additional deterrence is needed, “[n]othing
more [is] required.”

Id.

But see United States v. Solano-

Rosales, 781 F.3d 345, 353 (6th Cir. 2015) (explaining that the
sentencing court erred “in failing to acknowledge the guidelines
recommendation against supervised release embodied in § 5D1.1(c)
or discuss its decision to take a different course of action in
Defendant’s case”).

We agree with the Second Circuit’s analysis

and readily conclude that the three factors it has identified
are present here.
As for the first factor, the district court was aware of
§ 5D1.1(c)

because

it

adopted

the

PSR

“without

including the “advisory guideline application.”

change,”

See J.A. 37.

The PSR explained that supervised release is generally required
where

a

term

of

imprisonment

exceeding

one

year

is

imposed,

except that supervised release ordinarily should not be ordered
for a removable alien.

The PSR then recommended a term of

supervised release due to Aplicano’s particular characteristics
— that is, his propensity to commit violent crimes.

By way of

the PSR, the court was aware of section 5D1.1(c)’s substantive
recommendation against the imposition of supervised release on
removable aliens.
that

it

knew

the

Indeed, the court’s comment at sentencing
probation

officer
18

had

“some

concerns

with”

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imposing supervised release plainly referred to the provision of
section

5D1.1(c)

that

courts

“ordinarily”

supervised release for a removable alien.
With
considered

respect

to

the

Aplicano’s

second

specific

should

not

order

See id. at 54.

factor,

the

circumstances

district

court

and

other

the

§ 3553(a) factors in fashioning his term of supervised release.
More specifically, the court acknowledged Aplicano’s account of
the violence he and his family had suffered in Honduras, but
questioned

the

§ 3553(a)(1).

genuineness

of

that

story.

See

18

U.S.C.

Observing Aplicano’s history of violent criminal

activities while in the United States, see id., the court opted
to protect the people of this country from further crimes by
Aplicano, see id. § 3553(a)(2)(C).

The court also determined

that Aplicano’s history of illegal entries justified deterring
him from further unlawful reentries.

See id. § 3553(a)(2)(B).

Aplicano argues that the district court’s analysis of the
§ 3553(a) factors was limited to his term of imprisonment, and
thus

did

not

apply

to

his

term

of

supervised

release.

He

suggests that, because the court’s analysis of the § 3553(a)
factors preceded its imposition of a term of imprisonment, the
consideration
imprisonment.

of
A

those

factors

court’s

supported

sentencing

only

rationale,

support both imprisonment and supervised release.

the

term

however,

of
can

See United

States v. Clark, 726 F.3d 496, 501 (3d Cir. 2013) (“[W]e have
19

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never

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required

that

a

Pg: 20 of 25

district

court

conduct

two

§ 3553(a)

analyses, one related to the term of imprisonment and a second
related to the term of supervised release.”); United States v.
Presto, 498 F.3d 415, 419 (6th Cir. 2007) (concluding that the
sentencing

court

did

not

commit

procedural

error

when

it

“engaged in a single consideration of the [§ 3553(a)] sentencing
factors, which embraced both the incarceration sentence and the
supervised release term”).
Finally,
required
The

the

district

additional

court’s

court

deterrence,

statement

to

determined

satisfying

Aplicano

that

the

immediately

Aplicano

third
after

factor.
imposing

supervised release — “I think you may well try to get back in
the country again” — demonstrates that proposition.
Accordingly,

Aplicano’s

challenge

to

the

See id.
procedural

reasonableness of his supervised release term fails to survive
the first prong of plain error review, in that there was no
error.
C.
We next assess the substantive reasonableness of Aplicano’s
term

of

supervised

substantive
totality

of

release.

reasonableness,
the

When
we

circumstances,

must

Guidelines

range,

the

appellate
20

“take

including

variance from the Guidelines range.
the

reviewing

a

into
the

sentence

for

account

the

extent

of

any

If the sentence is within
court

may,

but

is

not

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required to, apply a presumption of reasonableness.”
U.S. at 51.

Gall, 552

A “defendant can only rebut the presumption by

demonstrating that the sentence is unreasonable when measured
against the § 3553(a) factors.”
445

F.3d

omitted).

375,

379

(4th

Cir.

United States v. Montes-Pineda,
2006)

(internal

quotation

marks

If the district court relies on an improper factor, a

sentence may be substantively unreasonable.

See id. at 378.

Because we agree that the imposition of supervised release on
Aplicano

was

consistent

with

the

Guidelines,

we

presume

the

substantive reasonableness of Aplicano’s sentence.
Aplicano’s

challenge

to

his

term

of

supervised

release

hinges on the district court’s remark that, if Aplicano violated
the conditions of supervised release, the authorities could “get
him in jail much faster than if we went through a separate
prosecution.”

See

Br.

of

Appellant

20

(citing

J.A.

54).

Aplicano contends that the court’s premise was flawed, and, as
such,

constitutes

substantive

error.

We

disagree.

Cf.

Morrissey v. Brewer, 408 U.S. 471, 479 (1972) (explaining that a
revocation of parole “is often preferred to a new prosecution
because of the procedural ease of recommitting the individual on
the basis of a lesser showing by the State”).

Furthermore, the

court’s sentencing rationale was not based on an impermissible
factor.

Indeed, the admonition that Aplicano would be “in jail

much faster” is yet another indication of the court’s intention
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to provide deterrence and protection for the community.
U.S.C. § 3553(a)(2)(B), (C).

See 18

In these circumstances, Aplicano’s

sentence was substantively reasonable.

Because there was no

error in this respect, this claim also fails the first prong of
plain error review.
D.
Finally, we assess whether the district court “failed to
sufficiently explain the nature and consequences of supervised
release,” in contravention of Rule 11 of the Federal Rules of
Criminal Procedure.

See Br. of Appellant 22.

Aplicano urges us

to either set aside his guilty plea or direct the district court
to resentence him without a term of supervised release.
Rule

11(b)(1)(H)

provides,

in

pertinent

part,

that

“[b]efore the court accepts a plea of guilty [it] must inform
the

defendant

of,

understands, . . .

and

any

determine

maximum

that

possible

the

penalty,

imprisonment, fine, and term of supervised release.”

defendant
including
We have

further determined that Rule 11 requires a district court “to
personally

inform

understands,

the

the
nature

defendant
of

the

charges

consequences of his guilty plea.”
522

F.3d

336,

340

(4th

Cir.

2008)

omitted).

22

of,

and

ensure

against

him

that

he

and

the

United States v. Hairston,
(internal

quotation

marks

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During
Aplicano

J.A. 23.

the

that

[includes]

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plea

the

“the

hearing,

maximum

supervised

release

district

possible
for

a

court

penalty
period

in

of

advised

this

three

case

years.”

Aplicano indicated to the court that he understood.

Furthermore, Aplicano acknowledged that he had reviewed the plea
letter — provided by him to “assist the Court in the Rule 11
colloquy” — with his interpreter.

See id. at 9.

The plea

letter, signed and dated by Aplicano, stated that if Aplicano
violated

his

supervised

release,

he

“could

be

returned

to

custody to serve another period of incarceration and a new term
of supervised release.”

Id. at 10.

When questioned by the

court late in the plea hearing about whether he understood the
proceedings, Aplicano responded, “I understand everything.”

Id.

at 31.
Aplicano now argues that, despite his understanding of the
consequences of supervised release — which he acknowledged in
the plea letter — the court inadequately advised him on the
subject of supervised release at the plea hearing.

Relying on

our decision in United States v. Thorne, 153 F.3d 130 (4th Cir.
1998), Aplicano contends that the plea letter did “not supplant
the district court’s obligations” to orally explain the nature
of

supervised

release.

See

Reply

Br.

of

Appellant

6.

In

Thorne, we determined that the sentencing court erred by failing
to properly inform the defendant of the nature of supervised
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release, even though the written plea agreement specified that
the defendant was subject to a term of supervised release.

See

153 F.3d at 133.
Even if the sentencing court erred in that regard and such
error was plain — satisfying the first two prongs of plain error
review

—

warranted

a

vacatur

because

of

Aplicano’s

Aplicano

has

not

affected his substantial rights.
507 U.S. 725, 734 (1993).

guilty
shown

plea
that

would
such

not

an

be

error

See United States v. Olano,

That is, Aplicano has not shown a

“‘reasonable probability that, but for the error, [he] would not
have entered the plea.’”

See United States v. Sanya, 774 F.3d

812, 817 (4th Cir. 2014) (quoting United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004)).

Importantly, Aplicano does

not point to anything in the record suggesting that he would not
have pleaded guilty absent the court’s failure to advise him of
the nature and consequences of supervised release.
Indeed, the fact that Aplicano made no effort to withdraw
his guilty plea after the district court imposed the term of
supervised release is compelling “evidence that he would have
entered the plea regardless.”

See United States v. Massenburg,

564 F.3d 337, 344 (4th Cir. 2009).

And there is no dispute that

the prosecution’s case against Aplicano was strong.

See id.

Accordingly, the record fails to show a “reasonable probability”
that Aplicano would have refrained from pleading guilty but for
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the assumed Rule 11 error, and Aplicano is unable to satisfy the
third prong of the plain error analysis.

See id. at 343.

Thus,

this appellate contention also fails.

IV.
Pursuant to the foregoing, we affirm the judgment of the
district court.
AFFIRMED

25