US v. Jose Benitez Alvarado

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cr-00696-JFM-1. Copies to all parties and the district court. [999860739]. [15-4749]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4749

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE ADOLFO BENITEZ ALVARADO,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
J. Frederick Motz, Senior District
Judge. (1:13-cr-00696-JFM-1)

Submitted:

May 19, 2016

Decided:

June 21, 2016

Before THACKER and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

James Wyda, Federal Public Defender, Meghan Skelton, Greenbelt,
Maryland, for Appellant.
Rod J. Rosenstein, United States
Attorney, Zachary A. Myers, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jose Adolfo Benitez Alvarado (Benitez Alvarado) pled guilty
to illegal reentry of a removed alien, in violation of 8 U.S.C.
§ 1326(a), (b)(2) (2012).

On appeal, Benitez Alvarado claimed

that the district court procedurally erred when it sentenced him
to

a

three-year

explanation.

We

remanded

for

propriety

of

term

of

supervised

vacated

the

resentencing,
supervised

release

term

of

expressing

release.

without

supervised
no

a

proper

release

and

opinion

as

to

States

v.

Benitez

United

the

Alvarado, 622 F. App’x 215 (4th Cir. 2015) (No. 14-4784).

At

resentencing,

of

the

court

supervised release.
imposition

of

imposed

the

same

three-year

term

Benitez Alvarado appeals, arguing that the

supervised

substantively unreasonable.

release

is

both

procedurally

and

We disagree and affirm the district

court’s amended judgment.
Under U.S. Sentencing Guidelines Manual § 5D1.1(c) (2013),
if

supervised

release

is

not

required

by

statute

and

the

defendant is an alien facing post-incarceration removal, as is
Benitez

Alvarado,

a

sentencing

court

impose a term of supervised release.”

“ordinarily

should

not

If the alien were to

return illegally, deterrence and the need to protect the public
are “adequately served by a new prosecution.”
“The

court

should,

however,

consider

§ 5D1.1 cmt. n.5.

imposing

a

term

of

supervised release on such a defendant if the court determines
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it would provide an added measure of deterrence and protection
based on the facts and circumstances of a particular case.”

Id.

The Guidelines “do not foreclose the possibility of supervised
release being imposed on removable aliens.”

United States v.

Aplicano-Oyuela, 792 F.3d 416, 423 (4th Cir. 2015).

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, nothing more is required.”

Id.

at 424 (internal quotation marks and alteration omitted).
“When reviewing a sentence for substantive reasonableness,
we must ‘take into account the totality of the circumstances,
including the extent of any variance from the Guidelines range.
If the sentence is within the Guidelines range, the appellate
court

may,

but

reasonableness.’”
552

U.S.

38,

51

is

not

required

to,

apply

a

presumption

of

Id. at 425 (quoting Gall v. United States,
(2007)).

“A

defendant

can

only

rebut

the

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

Id. (internal

quotation marks omitted).
Because Benitez Alvarado properly preserved the issue of
whether the explanation was adequate, we review the imposition
of supervised release for abuse of discretion.
Lynn, 592 F.3d 572, 576 (4th Cir. 2010).
3

United States v.

Upon our review of the

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record, we conclude that the district court’s imposition of a
three-year term of supervised release is both procedurally and
substantively reasonable and not an abuse of discretion.
court

was

aware

of

USSG

§ 5D1.1(c),

it

considered

The

Benitez

Alvarado’s specific circumstances and the § 3553(a) factors, and
it

determined

that

additional

deterrence

is

needed.

See

Aplicano-Oyuela, 792 F.3d at 424.
Accordingly,
judgment.
legal
before

we

affirm

the

district

court’s

amended

We dispense with oral argument because the facts and

contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

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