USA v. Elmer Velasquez-Sosa

Filing

UNPUBLISHED OPINION FILED. [12-40198 Affirmed ] Judge: EHJ , Judge: JLD , Judge: CH Mandate pull date is 02/19/2013 for Appellant Elmer Alexander Velasquez-Sosa [12-40198]

Case: 12-40198

Document: 00512125720

Page: 1

Date Filed: 01/28/2013

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 12-40198
Summary Calendar

January 28, 2013
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ELMER ALEXANDER VELASQUEZ-SOSA,
Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:11-CR-1228-1

Before JONES, DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
Elmer Alexander Velasquez-Sosa (Velasquez) appeals the sentence
imposed for his conviction for illegal reentry into the United States. He argues
that his sentence is procedurally and substantively unreasonable because the
district court imposed a three-year term of supervised release, notwithstanding
that U.S.S.G. § 5D1.1(c) provides that supervised release “ordinarily” should not
be imposed “in a case in which supervised release is not required by statute and

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

Case: 12-40198

Document: 00512125720

Page: 2

Date Filed: 01/28/2013

No. 12-40198
the defendant is a deportable alien who likely will be deported after imprisonment.”
As Velasquez concedes, our review of his challenge to the procedural
reasonableness of his sentence is limited to plain error because he did not raise
this argument in the district court. See United States v. Dominguez-Alvarado,
695 F.3d 324, 328 (5th Cir. 2012); see also Puckett v. United States, 556 U.S. 129,
135 (2009).

The parties disagree whether Velasquez’s challenge to the

substantive reasonableness of his sentence was preserved.

We need not

determine whether plain error review is applicable because, as discussed below,
Velasquez’s arguments fail even under an abuse-of-discretion standard. See
United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
The district court was aware of the provisions of § 5D1.1(c) because they
were set out in the presentence report, which the district court adopted. Given
the statements that the district court made when it imposed the sentence, which
addressed Velasquez’s history and the importance of his understanding that he
may not return to this country without permission, Velasquez fails to show that
the district court procedurally erred because it failed to adequately explain its
decision to impose a term of supervised release. See Dominguez-Alvarado, 695
F.3d at 329-30. Additionally, Velasquez fails to show error as to the substantive
reasonableness of his sentence since the district court’s statements at sentencing
provided support for the imposed term of supervised release. See United States
v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009); § 5D1.1, comment. (n.5). Although
Velasquez originally asserted that the district court erred in failing to give notice
of its intent to depart upwardly by imposing a term of supervised release, he
concedes that the issue is foreclosed by Dominguez-Alvarado, 695 F.3d at 329.
He seeks, however, to preserve the issue for further review.
The judgment of the district court is AFFIRMED.

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