USA v. Jose Arechiga-Duarte, No. 12-50682 (5th Cir. 2013)
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Case: 12-50682 Document: 00512182869 Page: 1 Date Filed: 03/21/2013 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 12-50682 Summary Calendar March 21, 2013 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOSE ELIAZAR ARECHIGA-DUARTE, also known as Jose Eliazar ArechigaDurate, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:11-CR-1903-1 Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM:* Jose Eliazar Arechiga-Duarte pleaded guilty to illegal reentry after deportation. The advisory guidelines range of imprisonment was 6 to 12 months. At sentencing, the district court found that Arechiga-Duarte s criminal history score did not represent his criminal history adequately and increased his criminal history category from I to IV, resulting in a recommended range of 15 to 21 months of imprisonment. The district court, in an upward departure, * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50682 Document: 00512182869 Page: 2 Date Filed: 03/21/2013 No. 12-50682 sentenced him to 21 months of imprisonment and three years of supervised release. On appeal, Arechiga-Duarte does not challenge the district court s upward departure based on his criminal history. Rather he argues that the term of supervised release was procedurally and substantively unreasonable because the district court failed to make case-specific findings to justify it. Because Arechiga-Duarte did not raise his objections in the district court, review is for plain error. United States v. Dominguez-Alvarado, 695 F.3d 324, 327-28 (5th Cir. 2012). Under U.S.S.G. § 5D1.1(c), supervised release is not ordinarily imposed on aliens who will likely be deported. When § 5D1.1(c) applies, 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. Dominguez-Alvarado, 695 F.3d at 329; § 5D1.1, comment. (n.5). Arechiga-Duarte had 10 prior convictions, for which the district court specifically found that it was necessary to increase his term of imprisonment considering the sentencing factors found at 18 U.S.C. § 3553(a), which include protecting the public and deterring criminal conduct. ArechigaDuarte has not challenged the upward departure or the findings supporting it. Arechiga-Duarte does not address why these unchallenged findings are not sufficient to support the imposition of a term of supervised release considering the same § 3553(a) factors. Accordingly, Arechiga-Duarte has not established, under the applicable plain error standard, that his sentence was either procedurally or substantively unreasonable. See Puckett v. United States, 556 U.S. 129, 135 (2009). AFFIRMED. 2
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