United States v. Carlos Bautista-Villanueva , 546 F. App'x 260 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4828
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLOS BAUTISTA-VILLANUEVA, a/k/a Andres Bautista
Villanueva, a/k/a Roberto Gutierrez Rodriguez, a/k/a Paulo
Bautista,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:12-cr-00222-WDQ-1)
Argued: September 20, 2013 Decided: November 21, 2013
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion. Judge
Niemeyer wrote a dissenting opinion.
ARGUED: Joanna Beth Silver, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Baltimore, Maryland, for Appellant. Rod J.
Rosenstein, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore,
Maryland, for Appellant. Roger K. Picker, Special Assistant
United States Attorney, UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Section 5D1.1(c) of the United States Sentencing Guidelines
(USSG) provides that “[t]he 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.” USSG
§ 5D1.1(c). Official commentary to this Guideline explains that
“[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.”
USSG § 5D1.1, comment. (n.5).
In the instant case, supervised release is not required by
statute and the defendant, Carlos Bautista-Villanueva
(Defendant), is a deportable alien who likely will be deported
back to Mexico after serving his sentence of fifty-seven months’
imprisonment resulting from his conviction on one count of
illegal reentry by an aggravated felon, 8 U.S.C. §§ 1326(a) and
(b)(2). Although the district court imposed a three-year term
of supervised release upon Defendant, the record does not
disclose whether the district court did so after determining
that imposition of a term of supervised release upon Defendant
would provide an added measure of deterrence and protection
based on the facts and circumstances of Defendant’s case, such
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that his case would not be considered ordinary for purposes of
USSG § 5D1.1(c).
On appeal, Defendant acknowledges that the Guidelines are
advisory as opposed to mandatory; however, Defendant argues that
USSG § 5D1.1(c) “must have some effect, and it cannot be
procedurally reasonable for a district court to ignore it
completely, with no supportive findings, explicit or implicit,
in the record.” (Defendant’s Opening Br. at 14). “For this
reason,” Defendant contends, “the imposition of a period of
supervised release in this case was procedurally unreasonable,
and this Court should vacate the sentence and remand the case
for resentencing.” Id.
Contrary to the government’s position on appeal, the record
does not disclose whether the district court, in imposing a
three-year term of supervised release upon Defendant, considered
USSG § 5D1.1(c) and its relevant commentary sufficiently for us
to conduct meaningful appellate review regarding whether the
district court performed an adequate individualized assessment
of the propriety of imposing a term of supervised release upon
Defendant. Accordingly, we vacate Defendant’s sentence and
remand this case to the district court for the limited purpose
of the district court revisiting its decision to impose a term
of supervised release upon Defendant. We express no opinion
regarding how the district court should rule on this issue.
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However, in so ruling, the district court must perform an
individualized assessment of the propriety of imposing a term of
supervised release upon Defendant sufficient for us to conduct
meaningful appellate review, including explaining its
consideration of the advisory guidance provided in USSG
§ 5D1.1(c) and the official commentary to this Guideline, see
USSG § 5D1.1, comment. (n.5); see United States v. Carter, 564
F.3d 325, 328 (4th Cir. 2009) (“Procedural errors include . . .
failing to adequately explain the chosen sentence—including an
explanation for any deviation from the Guidelines range.”
(internal quotation marks omitted)). If the district court
sentences Defendant to a term of supervised release on remand,
and if Defendant believes the district court procedurally erred
with respect to imposing such term, Defendant may note another
appeal on that ground in compliance with Federal Rule of
Appellate Procedure 4(b).
VACATED AND REMANDED
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NIEMEYER, Circuit Judge, dissenting:
The district court conducted a thorough, individualized
assessment of Bautista-Villanueva’s criminal history and
personal characteristics and provided a reasonable justification
for the sentence it imposed on him. The majority admits as
much, as it finds no fault with the district court’s explanation
for imposing the sentence of imprisonment. Nonetheless, the
majority holds that the district court erred by imposing a term
of supervised release without giving an explicit justification
in view of U.S.S.G. § 5D1.1(c) (stating that a court should
“ordinarily” not impose a term of supervised release for a
defendant who “likely will be deported after imprisonment”).
After noting during the sentencing hearing the fact that
Bautista-Villanueva had twice before illegally entered the
United States, the district court imposed a three-year term of
supervised release as part of Bautista-Villanueva’s sentence,
even though he would likely be deported after serving his prison
term, and it required, as a condition, that Bautista-Villanueva
“cooperat[e] with ICE officials” and, if deported, “not reenter
the United States without express permission of the Attorney
General” or his representative. The majority faults the
district court’s imposition of supervised release because
U.S.S.G. § 5D1.1(c) provides that supervised release is not
ordinarily imposed when the defendant will likely be deported
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and the court did not reference § 5D1.1(c) and explain why this
case was not ordinary.
While the district court did not say explicitly, when
imposing supervised release, why this case was extraordinary,
the record shows that the district court understood that it was
not the ordinary situation involving the deportation of an alien
who had committed a crime in the United States. The court’s
discussion of Bautista-Villanueva’s repeated illegal entries and
its requirement that he not reenter make clear that the court
was concerned about deterrence.
In requiring a more explicit and detailed explanation, the
majority has created a new procedural formalism that will be
required whenever courts sentence deportable aliens to
supervised release.
Because I think such a requirement finds no support in the
Sentencing Guidelines and because the sentencing court in the
present case made clear that it was imposing supervised release
because of Bautista-Villanueva’s history and as a deterrence, I
respectfully dissent.
I
Carlos Bautista-Villanueva is a 36-year-old citizen of
Mexico, who first entered the United States illegally when he
was 13. He was removed from the United States in 2007 and
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illegally entered the country a second time in 2010. When
Bautista-Villanueva was thereafter found in Baltimore, Maryland,
he was charged with unlawful reentry by an aggravated felon, in
violation of 8 U.S.C. § 1326(a), (b)(2), and pleaded guilty to
the charge.
In the presentence report, the probation officer noted that
Bautista-Villanueva’s “guideline range for . . . supervised
release” was one to three years. But, the report continued,
“[p]ursuant to U.S.S.G. §5D1.1(c), the Court ordinarily should
not impose a term of supervised release in a case in which the
defendant is a deportable alien who will likely be deported
after imprisonment.” The presentence report noted that
Bautista-Villanueva would likely be deported following the
service of his sentence.
At the sentencing hearing, Bautista-Villanueva’s counsel
urged the court to issue a light term of imprisonment and noted
that “pursuant to the Guideline, 5D1.1(c), . . . a period of
supervised release is not necessary, nor is it really
recommended in this case, because he will be deported.” Before
imposing its sentence, the court recounted Bautista-Villanueva’s
criminal history and described his record of illegal entry,
stating, “Mr. Bautista-Villanueva is a citizen of Mexico. He
was removed from the United States to Mexico on December 5,
2007, reentered the country without authorization, and was found
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here on March 28th, 2012, when he was taken into custody by ICE
officers.” The court went on to recount aspects of Bautista-
Villanueva’s personal history -- that he had an abusive father,
completed eleventh grade, had been employed in the construction
industry, and had a wife and son. It then provided the
following assessment:
In this case, the seriousness of his criminal
history, I think, is balanced against his age
and . . . the fact that . . . the offenses were
committed over a relatively brief period of time.
Accordingly, I do believe that there is some over-
representation of seriousness of the record.
Accordingly, I will grant a departure – a one criminal
history level departure downward, and I believe that,
given the Defendant’s age and plans for life in Mexico
and what I perceive as a reduced likelihood of
recidivism, a sentence at the bottom of the advisory
guidelines range . . . is sufficient but not greater
than necessary to reflect the seriousness of the
offense, provide just punishment and adequate
deterrence, promote respect for the law, and protect
the public from further crimes of the Defendant.
Accordingly, Mr. Bautista-Villanueva, I commit
you to the custody of the Attorney General or his
authorized designee in the Bureau of Prisons to serve
a term of imprisonment of 57 . . . months; impose a
three-year term of supervised release with special
conditions of cooperation with ICE officials, and that
you follow any lawful order entered in your case by
the Immigration authorities.
I will also recommend drug and alcohol screening
and treatment as a part of the supervised release.
(Emphasis added). In its written judgment, the court included
as conditions of Bautista-Villanueva’s supervised release: “The
defendant shall be surrendered to a duly authorized immigration
official for deportation in accordance with established
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procedures provided by the Immigration and Naturalization Act.
If ordered deported, the defendant shall not reenter the United
States without express permission of the Attorney General, or
his/her designated representative.”
II
The majority has no qualms with the district court’s
explanation and justification for the 57-month term of
imprisonment, but it finds that court’s explanation for the
imposition of supervised release procedurally unreasonable. On
remand, the majority would have the district court “explain[]
its consideration of the advisory guidance provided in USSG §
5D1.1(c) and the official commentary to this Guideline.” Ante,
at 5.
To my knowledge, this is the first instance where an
appellate court has reversed a district court for inadequately
justifying an imposition of supervised release under § 5D1.1(c). *
*
I am aware of two cases in which appellate courts have
found error with sentencing courts’ impositions of supervised
release under § 5D1.1(c). United States v. Butler, No. 11-4383,
2013 U.S. App. LEXIS 14736 (3d Cir. July 19, 2013); United
States v. Chavez-Trejo, No. 12-40006, 2013 U.S. App. LEXIS 6734
(5th Cir. Apr. 3, 2013) (per curiam). In both of these cases,
the sentencing court had made clear errors of law: in Butler,
by relying on the outdated 2010 Guidelines; and, in Chavez-
Trejo, by mistakenly stating that supervised release was
mandatory. Neither of these cases are akin to the present facts,
though, where the court was presented with correct statements of
law and simply failed to explicitly justify the term of
supervised release.
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The majority appears to be fashioning a new procedural rule that
district courts hereafter must always explicitly justify an
imposition of supervised release on deportable aliens, perhaps
with specific reference to U.S.S.G. § 5D1.1(c).
Yet, U.S.S.G. § 5D1.1(c) does not impose such a procedural
requirement. Indeed, the language of § 5D1.1(c) is
conspicuously hortatory (“The court ordinarily should not impose
a term of supervised release . . .”). See United Sates v.
Dominguez-Alvarado, 695 F.3d 324, 329 (5th Cir. 2012). And the
Commentary to § 5D1.1(c) instructs courts to “consider imposing
a term of supervised release . . . if the court determines it
would provided an added measure of deterrence and protection
based on the facts and circumstances of a particular case.”
(Emphasis added). This is because, as the Fifth Circuit has
noted, the addition of § 5D1.1(c) was “animated primarily by
administrative concerns inherent in trying to administer
supervised release as to someone who has been deported.” United
States v. Becerril-Peña, 714 F.3d 347, 350 (5th Cir. 2013).
Like the Fifth Circuit, I can find no indication that the
Sentencing Commission intended § 5D1.1(c) to provide deportable
aliens with a new procedural shield to protect them from
supervised release. See Becerril-Peña, 714 F.3d at 350.
Indeed, such a motive would have been rather illogical. As
Bautista-Villanueva’s counsel admitted at oral argument,
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supervised release is inconsequential to aliens who do not
illegally reenter the United States. Supervised release for
deportable aliens is only useful because it streamlines removal
proceedings against aliens who do illegally reenter. I find it
difficult to believe that the Sentencing Commission promulgated
§ 5D1.1(c) to make more difficult the removal of illegal
reentrants. Indeed, if that were the goal, supervised release
would rationally never be permitted for deportable aliens. To
the contrary, § 5D1.1(c) appears to be aimed at eliminating the
bureaucratic machinery of supervised release in cases where it
is unnecessary, while nonetheless giving district courts the
option of imposing it to provide an additional deterrence where
illegal reentry might likely follow.
I would hold that a district court fulfills its procedural
obligations in these circumstances by “apply[ing] the relevant §
3553(a) factors to the specific circumstances of the case before
it.” United States v. Carter, 564 F.3d 325, 328 (4th Cir.
2009). And when a court imposes supervised release on a
deportable alien, the relevant § 3553(a) factors include
deterrence and protection of the public. The district court
would need to “‘state in open court’ the particular reasons
supporting its chosen sentence.” Id. (citing 18 U.S.C. §
3553(c)) (emphasis added). But rather than requiring a district
court to repeat its justification for both the term of
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imprisonment and the term of supervised release, I would find a
district court’s explanation procedurally reasonable as long as
it sufficiently justified the sentence as a whole.
This is just the approach that every circuit has adopted up
until this point – including ours. See, e.g., United States v.
Ramirez, 503 F. App’x 226 (4th Cir. 2013) (per curiam)
(affirming a sentence of supervised release for a deportable
alien even though the district court did not explicitly justify
the supervised release or discuss § 5D1.1(c)); United States v.
Deleon-Ramirez, No. 12-4642, 2013 U.S. App. LEXIS 20906 (4th
Cir. Oct. 16, 2013) (per curiam) (same); United States v.
Sanchez-Mendez, 521 F. App’x 142 (4th Cir. 2013) (per curiam)
(same); United States v. Jimenez-Manuel, 494 F. App’x 411 (4th
Cir. 2012) (per curiam) (same); United States v. Alvarado, 720
F.3d 153, 158 (2d Cir. 2013) (“A district court is not required
explicitly to link its finding that added deterrence is needed
to its decision to impose a term of supervised release”); United
States v. Valdez-Cruz, 510 F. App’x 834, 840 (11th Cir. 2013)
(per curiam) (“Although Valdez-Cruz argues that the court failed
to give a case-specific reason for imposing a term of supervised
release, the district court specifically discussed the need for
deterrence in Valdez-Cruz’s case and the record supports the
court’s determination”); Dominguez-Alvarado, 695 F.3d at 330
(finding the following explanation sufficient to justify
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supervised release for a deportable alien: “I 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”).
I would hold further that the district court in the present
case “adequately explain[ed] the chosen sentence to allow for
meaningful appellate review and to promote the perception of
fair sentencing.” Gall v. United States, 552 U.S. 38, 50
(2007). The district court’s “individualized assessment”
included a careful consideration of Bautista-Villanueva’s
criminal and personal history. Carter, 564 F.3d at 330. The
court noted that the sentence it was imposing was “sufficient
but not greater than necessary to reflect the seriousness of the
offense, provide just punishment and adequate deterrence,
promote respect for the law, and protect the public from further
crimes of the Defendant.” It is clear from the record that the
district court imposed the term of supervised release because it
feared that Bautista-Villanueva would illegally return to the
United States. The district court noted that Bautista-
Villanueva had illegally entered the United States twice in the
past, and it imposed, as a condition of the supervised release,
requirements that Bautista-Villanueva “cooperat[e] with ICE
officials” and, if deported, that he “not reenter the United
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States without express permission of the Attorney General, or
his/her designated representative.” Given Bautista-Villanueva’s
history of illegal reentry, the district court’s imposition of
supervised release was reasonable.
I would affirm.
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