US v. Jairo Garcia

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:14-cr-00155-RAJ-1. Copies to all parties and the district court. [999737343].. [15-4227]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4227

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAIRO MENDEZ GARCIA,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:14-cr-00155-RAJ-1)

Submitted:

December 14, 2015

Decided:

January 19, 2016

Before KING and FLOYD, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Affirmed by unpublished per curiam opinion.

Geremy C. Kamens, Acting Federal Public Defender, Patrick L.
Bryant, Appellate Attorney, Keith Loren Kimball, Assistant
Federal Public Defender, Alexandria, Virginia, for Appellant.
Melissa Elaine O’Boyle, Assistant United States Attorney,
Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jairo Mendez Garcia pled guilty, without a plea agreement,
to illegal reentry of a removed felon, in violation of 8 U.S.C.
§ 1326(a), (b)(1) (2012).

The district court sentenced him to

36 months’ imprisonment, a downward variance from the 41- to 51month Sentencing Guidelines range, and imposed a 3-year term of
supervised

release.

On

appeal,

counsel

has

filed

a

brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that

there

are

no

meritorious

grounds

for

appeal,

but

questioning the validity of Mendez Garcia’s guilty plea and the
reasonableness
release.

of

the

imposition

of

a

term

of

supervised

Although notified of his right to do so, Mendez Garcia

did not file a pro se supplemental brief.

Finding no reversible

error, we affirm.
Counsel for Mendez Garcia questions whether omissions at
the

Fed.

invalid.

R.

Crim.

P.

11

hearing

rendered

the

guilty

plea

Because Mendez Garcia did not assert in the district

court any error in the plea proceedings or move to withdraw his
guilty plea, we review the adequacy of his plea colloquy for
plain error.

United States v. Massenburg, 564 F.3d 337, 342

(4th Cir. 2009).

To establish plain error, Mendez Garcia must

demonstrate that the district court erred, the error was plain,
and it affected his substantial rights.

Henderson v. United

States,

In

133

S.

Ct.

1121,

1126
2

(2013).

the

guilty

plea

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context, an error affects a defendant’s substantial rights if he
demonstrates a reasonable probability that he would not have
pled guilty but for the error.

Massenburg, 564 F.3d at 343.

Even if these requirements are met, we will “correct the error
only if it seriously affects the fairness, integrity or public
reputation

of

judicial

proceedings.”

United

States

v.

Nicholson, 676 F.3d 376, 381 (4th Cir. 2012) (internal quotation
marks omitted).
Our review of the record reveals that the district court
substantially complied with the mandates of Rule 11 and that
Mendez

Garcia’s

omissions.

substantial

rights

were

unaffected

by

any

We conclude that Mendez Garcia’s guilty plea was

knowing and voluntary.
Counsel for Mendez Garcia contends that the district court
erred in imposing a term of supervised release because Mendez
Garcia is a deportable alien.

Under U.S. Sentencing Guidelines

Manual § 5D1.1(c) (2014), a district 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

imprisonment.”
the

district

alien

Id.
court

who

likely

will

be

deported

after

However, the Advisory Notes clarify that
should

“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
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based

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on

the

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facts

and

USSG § 5D1.1 cmt. n.5.
recognized

that

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circumstances

of

a

particular

case.”

Here, the district court and the parties

Mendez

Garcia

would

be

deported,

and

the

presentence report had expressly referenced USSG § 5D1.1(c), but
no objection was made to the imposition of a term of supervised
release.

We therefore review for plain error Mendez Garcia’s

challenge

to

the

imposition

of

a

supervised

release

term.

United States v. Aplicano-Oyuela, 792 F.3d 416, 422 (4th Cir.
2015).
The

imposition

of

a

term

of

supervised

release

on

a

deportable alien is reasonable if the “sentencing court (1) is
aware

of

Guidelines

section

5D1.1(c);

(2)

considers

a

defendant’s specific circumstances and the [18 U.S.C.] § 3553(a)
[(2012)] factors; and (3) determines that additional deterrence
is needed.”

Aplicano-Oyuela, 792 F.3d at 424 (citing United

States v. Alvarado, 720 F.3d 153, 159 (2d Cir. 2013)).

We have

reviewed the record with these standards in mind and find that
the district court did not plainly err in imposing a term of
supervised release on this defendant.
In

accordance

with

Anders,

we

have

reviewed

the

entire

record for any meritorious grounds for appeal and have found
none.

Accordingly, we affirm the district court’s judgment.

This court requires that counsel inform Mendez Garcia, in
writing,

of

his

right

to

petition
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the

Supreme

Court

of

the

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United States for further review.
that

a

petition

be

filed,

but

If Mendez Garcia requests

counsel

believes

that

such

a

petition would be frivolous, counsel may move in this court for
leave to withdraw from representation.

Counsel’s motion must

state that a copy thereof was served on his client.

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

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