USA v. Jesus Morin-Davila
UNPUBLISHED OPINION FILED. [12-40126 Affirmed ] Judge: JLW , Judge: EBC , Judge: JWE Mandate pull date is 02/06/2013 for Appellant Jesus Morin-Davila [12-40126]
Date Filed: 01/16/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
January 16, 2013
Lyle W. Cayce
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:10-CR-1839-1
Before WIENER, CLEMENT, and ELROD, Circuit Judges.
Defendant-Appellant Jesus Morin-Davila pleaded guilty to illegal reentry
and was sentenced within the guidelines to 57 months of imprisonment and two
years of supervised release.
Morin-Davila asserts that his sentence is
procedurally and substantively unreasonable because the district court imposed
a two-year term of supervised release, notwithstanding Sentencing Guideline §
5D1.1(c) providing that supervised release “ordinarily” should not be imposed “in
a case in which supervised release is not required by statute and the defendant
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 01/16/2013
is a deportable alien who likely will be deported after imprisonment.” We review
Morin-Davila’s unpreserved claim of error for plain error only. See United States
v. Dominguez–Alvarado, 695 F.3d 324, 327-28 (5th Cir.2012).
The district court was aware of the provisions of § 5D1 .1(c) because they
were provided in the presentence report, which the court adopted. Contrary to
Morin-Davila’s claim that the court committed procedural error by failing
provide any explanation for its imposition of supervised release, the court made
statements at sentencing that addressed Morin-Davila’s history and
characteristics, as well as the need for deterrence, specifically noting, “ The last
time you received a significant sentence and yet you’re back here today.” The
district court stated that it imposed the term of supervised release “given the
seriousness of [Morin-Davila’s] prior criminal convictions.”
argument that the supervised release term amounted to a departure is
foreclosed by Dominguez–Alvarado, 695 F.3d at 329.
Morin-Davila also fails to show plain error with regard to the substantive
reasonableness of his sentence. Although he correctly asserts that § 5D1.1(c)
advises that “ordinarily” supervised release should not be imposed where, as
here, the defendant is likely to be deported after imprisonment, “[t]he 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.” U.S.S.G. § 5D1.1. comment. (n.5). That is what the district court did in
the instant case.
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