USA v. Norma Alvarez-Saldana

Filing

UNPUBLISHED OPINION FILED. [12-41408 Affirmed ] Judge: PEH , Judge: EBC , Judge: ECP Mandate pull date is 08/19/2013 for Appellant Norma Alvarez-Saldana [12-41408]

Case: 12-41408

Document: 00512323896

Page: 1

Date Filed: 07/29/2013

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

FILED
July 29, 2013

No. 12-41408

Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff–Appellee
v.
NORMA ALVAREZ–SALDANA,
Defendant–Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:12-CR-203-1

Before HIGGINBOTHAM, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Defendant–Appellant Norma Alvarez–Saldana appeals the district court’s
imposition of a three-year term of supervised release as part of her criminal
sentence. For the following reasons, we AFFIRM.
Background
Norma Alvarez–Saldana, a Mexican national, pleaded guilty to being
found unlawfully in the United States after having been previously deported, in
violation of 8 U.S.C. § 1326. The presentence report (“PSR”) calculated her total
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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offense level as twenty-two with a criminal history score of IV, resulting in a
guidelines range of sixty-three to seventy-eight months of imprisonment. The
PSR also indicated that the guidelines range for supervised release was one to
three years but explained that, under U.S.S.G. § 5D1.1(c), supervised release
ordinarily should not be imposed if it is not required by statute and the
defendant is an alien likely to be deported.
At the sentencing hearing, Alvarez–Saldana stated that she had no
objection to the PSR.1 The district court noted the PSR’s advisory guidelines
range, stated that “[t]here will be a period of supervised release of three years,”
and then gave both parties an opportunity to speak before imposing the
sentence. Alvarez–Saldana did not object to the statement regarding supervised
release and instead simply argued for a below-guidelines sentence, urging that
she had a benign motive for reentry, had lived the majority of her life in the
United States, had maintained continued employment as a housekeeper, had
been the victim of domestic violence, had suffered from bouts of anxiety and
depression, and had no prior illegal reentry convictions.
When Alvarez–Saldana completed her argument, the district court stated,
What troubles me about this is this is not only an illegal reentry but
it’s what this woman was doing . . . when she was in the United
States. A cleaning lady, I don’t know, but I do know that there
appears to be about three separate convictions for selling or
attempting to sell heroin[], a nasty, nasty drug that is dangerous
and very addictive. And each time that she did it, she didn’t profit
from that. She went back out to do it. And, you know, I understand
why she’s wanting to do it, maybe because she wants to support her
family with this, but the fact of the matter is, you had three
separate chances . . . to quit doing this and you didn’t.

1

Before the sentencing hearing, Alvarez–Saldana objected to the calculation of her total
offense level, but that objection was resolved and is not raised in this appeal.

2

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The court sentenced Alvarez–Saldana to a term of sixty-three months’
imprisonment, to be followed by three years of supervised release.
Alvarez–Saldana then objected to the sentence as “more than sufficient and
greater than necessary” and timely appealed.
Discussion
Alvarez–Saldana challenges the term of supervised release as procedurally
and substantively unreasonable. Specifically, she argues that the district court
erred procedurally by failing to explain its decision to impose supervised release
despite § 5D1.1(c)’s guidance that supervised release ordinarily should not be
imposed in a case involving a deportable alien. She also asserts that the
supervised-release term is substantively unreasonable because the district court
failed to account for § 5D1.1(c)’s guidance, a factor that should have received
significant weight.2
“We generally review sentences for abuse of discretion.” United States v.
Cancino–Trinidad, 710 F.3d 601, 604 (5th Cir. 2013). In doing so, we conduct
a bifurcated analysis. First, we “ensure that the sentencing court committed no
significant procedural error,” which includes, among other things, “failing to
adequately explain the chosen sentence.” United States v. Dominguez–Alvarado,
695 F.3d 324, 327 (5th Cir. 2012) (internal quotation marks omitted). If the
sentence is procedurally proper, “we then consider the substantive
reasonableness of the sentence.” Cancino–Trinidad, 710 F.3d at 605 (internal
quotation marks omitted).

“[A] sentence within the Guidelines range is

presumed reasonable on appeal.” United States v. Mondragon–Santiago, 564
F.3d 357, 360 (5th Cir. 2009).

2

Alvarez–Saldana also preserves for further review her assertion that the district
court’s imposition of supervised release constituted an upward departure from the guidelines
requiring notice, though she acknowledges that our precedent forecloses that argument. See
United States v. Dominguez–Alvarado, 695 F.3d 324, 329 (5th Cir. 2012).

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If a defendant fails to properly object to an alleged error at sentencing,
however, review is for plain error. Dominguez–Alvarado, 695 F.3d at 327. We
can remedy such an error “only when it is plain and affects the defendant’s
substantial rights.” Mondragon–Santiago, 564 F.3d at 361. Even when these
elements are met, we generally will exercise our discretion to correct the error
only if it “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Puckett v. United States, 556 U.S. 129, 135 (2009) (alteration in
original) (internal quotation marks omitted).
Alvarez–Saldana concedes that her objection to the sentence being “greater
than necessary” was insufficient to alert the district court of her disagreement
with

the

manner

in

which

the

sentence

was

explained.

Cf.

Mondragon–Santiago, 564 F.3d at 361 (“A district court hearing an objection
that a sentence is ‘greater than necessary’ would not know from those words that
the defendant wanted further explanation of the sentence.”). We therefore
review her claim of procedural unreasonableness for plain error and her claim
of substantive unreasonableness for abuse of discretion. See, e.g., id. (analyzing
an identical objection and concluding that the claim of procedural
unreasonableness would be reviewed for plain error and the claim of substantive
unreasonableness for abuse of discretion).
With respect to procedural unreasonableness, we have previously
addressed the adequacy of explanations for the imposition of supervised release
in cases involving § 5D1.1(c). In Dominguez–Alvarado, we interpreted that
provision and its accompanying commentary to mean that, in the case of a
deportable alien, “supervised release should not be imposed absent a
determination that supervised release would provide an added measure of
deterrence and protection based on the facts and circumstances of a particular
case.” 695 F.3d at 329. The district court had imposed a sentence that included
a three-year term of supervised release and justified its decision by stating, “I
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gave the sentence after looking at the factors in 3553(a), to deter future criminal
conduct, his particular background and characteristics, which apparently do not
make him a welcome visitor to this country.” Id. at 330 (internal quotation
marks omitted).

The defendant did not challenge the adequacy of this

explanation until his appeal, but we held that “[e]ven when an objection is voiced
under § 5D1.1(c), [the district court’s] particularized explanation and concern
would justify imposition of a term of supervised release.” Id. As a result, the
district court did not commit any error, plain or otherwise, with its explanation.
Id.; see also United States v. Reyes–Serna, 509 F. App’x 313, 314 (5th Cir. 2013)
(per curiam) (unpublished) (finding the district court’s explanation of the
supervised-release term sufficient when the district court noted the defendant’s
criminal history, the § 3553(a) factors, and the need to protect the public).
Here, the district court similarly spoke of Alvarez–Saldana’s criminal
history, citing her repeated sales of a “dangerous” and “very addictive” drug.
Additionally, the court adopted the PSR, which informed the court that under
§ 5D1.1(c) it ordinarily should not impose a term of supervised release in a case
such as this. The court’s adoption of the PSR supports our general inference
that the court “considered all pertinent sentencing considerations in imposing
the sentence,” Cancino–Trinidad, 710 F.3d at 606 (internal quotation marks
omitted), and its focus on the nature of Alvarez–Saldana’s repeated prior
convictions indicates that the court weighed the need for added deterrence and
protection.3 Under these circumstances, particularly the similarity between the
explanation here and the one found sufficient in Dominguez–Alvarado, we
cannot say that the court plainly erred in failing to adequately explain its

3

Indeed, the district court rejected defense counsel’s argument that “I don’t think that
it’s necessary that You Honor sentence her within the guidelines to deter her from returning.
The time that she’s already been in prison and the fact that she has had time to reflect on the
possible punishment that she may receive today is enough to deter her from coming back.”

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reasons for the sentence imposed. We note further that even if there were clear
or obvious error, Alvarez–Saldana’s claim would still fail as she has not shown
that an adequate explanation would have changed her within-guidelines-range
sentence. See, e.g., Mondragon–Santiago, 564 F.3d at 365 (“While a district
court errs by failing to explain a sentence, the effect of that error on our review
for reasonableness is diminished when the sentence is within the Guidelines
range.”).
We

next

consider

Alvarez–Saldana’s

claim

of

substantive

unreasonableness. “One basis for error in a defendant’s sentence is failure by
the district court to account for a factor that should receive significant weight.”
Cancino–Trinidad, 710 F.3d at 607 (internal quotation marks omitted).
Alvarez–Saldana argues that the relevant factor ignored by the district court is
§ 5D1.1(c)’s guidance that the court ordinarily should not impose supervised
release in cases involving deportable aliens. Her supervised-release term,
however, was within the guidelines range of one to three years.

See

Dominguez–Alvarado, 695 F.3d at 329 (holding that the imposition of supervised
release despite § 5D1.1(c)’s guidance does not constitute an upward departure
from the guidelines). “We ordinarily apply a presumption of reasonableness to
within-guidelines sentences.” Cancino–Trinidad, 710 F.3d at 607 (alteration and
internal quotation marks omitted). As Alvarez–Saldana has not presented a
compelling argument to rebut that presumption, we conclude that the sentence
was not substantively unreasonable. See, e.g., id. at 607–08 (rejecting an
identical claim of substantive unreasonableness and holding that the imposition
of a within-guidelines-range term of supervised release “was not itself error”).
Conclusion
For the foregoing reasons, the judgment of the district court is
AFFIRMED.

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