USA v. Luis Figueroa-Dominguez

Filing

UNPUBLISHED OPINION FILED. [16-20197 Affirmed] Judge: FPB, Judge: JLD, Judge: ECP. Mandate pull date is 02/24/2017 for Appellant Luis Miguel Figueroa-Dominguez [16-20197]

Case: 16-20197

Document: 00513862169

Page: 1

Date Filed: 02/03/2017

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

No. 16-20197
Summary Calendar

FILED
February 3, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.

LUIS MIGUEL FIGUEROA-DOMINGUEZ, also known as Luis Miguel
Figueroa, also known as Luis Figueroa-Dominguez, also known as Luis Miguel
Figeroa Dominguez, also known as Luis M. Figueroa, also known as Luis
Miguel Figeroa-Dominguez, also known as Miguel Fijueroa,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CR-570-1
Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
Luis Miguel Figueroa-Dominguez appeals the within-guideline sentence
imposed following his guilty plea to illegal reentry in violation of 8 U.S.C.
§ 1326(a) and (b)(1). He argues, for the first time on appeal, that the district
court committed a procedural error when it imposed a three-year term of

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 16-20197
supervised release without making either an explicit or implicit finding that
supervised release was necessary for added protection of the public and
deterrence. Because Figueroa-Dominguez raised no objection to the district
court’s imposition of supervised release, this court’s review is for plain error.
See United States v. Dominguez-Alvarado, 695 F.3d 324, 327 (5th Cir. 2012).
To establish plain error, Figueroa-Dominguez must show a forfeited error that
is clear or obvious and that affects his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). “A sentencing error affects a defendant’s
substantial rights if he can show a reasonable probability that, but for the
district court’s [error] he would have received a lesser sentence.” United States
v. Cancino-Trinidad, 710 F.3d 601, 606 (5th Cir. 2013). The appellant bears
the burden of making this showing. Id. If the appellant makes such a showing,
this court has the discretion to correct the error only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See Puckett,
556 U.S. at 135.
As noted in the presentence report (PSR) that was adopted by the district
court, U.S.S.G. § 5D1.1(c) provides that 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 alien who likely will
be deported after imprisonment.” The commentary explains, however, that the
court “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 based on the facts and circumstances of a particular
case.” § 5D1.1, cmt. n.5.
In cases involving deportable aliens, “supervised release should not be
imposed absent a determination that [it] would provide an added measure of
deterrence and protection based on the facts and circumstances of a particular

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case.” Dominguez-Alvarado, 695 F.3d at 329. “As in other sentencing contexts
where a guidelines sentence is given, the requirement is not onerous.” United
States v. Becerril-Pena, 714 F.3d 347, 349 (5th Cir. 2013). In Becerril-Pena,
714 F.3d at 349, 351, we concluded, on de novo review, that “the district court
supplied a sufficiently ‘particularized explanation’ of its decision to impose
supervised release” when it found the “sentence appropriate under the factors
listed in 18 U.S.C. § 3553(a) and those applicable to sentencing generally.”
Figueroa-Dominguez cites to no authority supporting his assertion that
we may not consider, as a whole, the district court’s remarks at the sentencing
hearing. Nor does he cite any authority indicating that the court’s explanation
of its sentence was clearly or obviously insufficient to support the imposition
of supervised release. Moreover, Figueroa-Dominguez has not met his burden
of showing that the error, if any, affected his substantial rights. See CancinoTrinidad, 710 F.3d at 606.

The district court observed that Figueroa-

Dominguez’s multiple deportations had not deterred his continued illegal
reentry and additional illegal conduct. It also expressed consideration of the
need to protect the public. Figueroa-Dominguez’s speculation that it is “likely”
that the court would not have imposed supervised release is thus not supported
by the record. In sum, because Figueroa-Dominguez has not demonstrated
that the district court committed a clear or obvious procedural error, the
judgment of the district court is AFFIRMED.

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