Submitted: November 12, 2018
from United States District Court for the Northern District
of Iowa - Dubuque
COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
Jose Hernandez-Loera pled guilty to one count of unlawful use
of identification documents, in violation of 18 U.S.C. §
1546(a). The district court sentenced him to a time-served
sentence of 111 days and 3 years of supervised release.
Hernandez-Loera appeals, asserting that the district court
erred in sentencing him to a term of supervised release.
Having jurisdiction under 28 U.S.C. § 1291, we affirm.
a native and citizen of Mexico and illegally in the United
States, pled guilty and received his sentence for the
unlawful use of identification documents related to his use
of a fraudulent social security card and a fraudulent
permanent resident card to obtain employment. On appeal,
Hernandez-Loera challenges only the imposition of supervised
release, asserting that the district court procedurally erred
in imposing the term of supervised release, where it was
expected that Hernandez-Loera would be immediately deported,
without specific findings as to why supervised release was
Hernandez-Loera did not object at sentencing to the
imposition of supervised release, we review his claim for
plain error. United States v. Pate, 518 F.3d 972,
975 (8th Cir. 2008). "Under plain error review, it is
the defendant's burden to prove (1) there was error, (2)
that was plain, and (3) affected substantial rights."
United States v. Adejumo, 772 F.3d 513, 538 (8th
Cir. 2014) (quoting United States v. Martin, 714
F.3d 1081, 1084 (8th Cir. 2013)).
no error in the district court's decision to sentence
Hernandez-Loera to a term of supervised release. Under the
Sentencing Guidelines, "[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." United States Sentencing
Commission, Guidelines Manual, § 5D1.1(c). But
the district court retains discretion to impose supervised
release where it determines that supervised release
"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
addition, as some of our sister circuits have held, the
"term 'ordinarily' in section 5D1.1(c) is
'hortatory, not mandatory.'" United States
v. Aplicano-Oyuela, 792 F.3d 416, 424 (4th Cir. 2015)
(quoting United States v. Dominguez-Alvarado, 695
F.3d 324, 329 (5th Cir. 2012)).
sentencing, the government specifically asked for a period of
supervised release as a means to deter Hernandez-Loera from
another attempted illegal reentry. Significantly, in
executing a search warrant on Hernandez-Loera's
residence, law enforcement found tax returns, payroll
information, counterfeit social security cards, and
counterfeit immigration documents. While the district court
did not specifically link its imposition of supervised
release to the need for added deterrence, this is not
reversible error. See United States v. Alvarado, 720
F.3d 153, 158 (2d Cir. 2013) (finding no error where district
court did not explicitly discuss USSG § 5D1.1(c) when
imposing supervised release). The record reflects that the
district court considered the appropriate sentencing factors,
the arguments of counsel, and the specific circumstances of
the case before sentencing Hernandez-Loera. Further, the
conditions of Hernandez-Loera's supervised release
specified if he were removed or deported, he could not
reenter the United States without permission, but he would
not be on active supervision while he was outside the
country. We conclude the district court's decision to
impose supervised release is both consistent with the
Sentencing Guidelines and an appropriate exercise of the
district court's wide latitude in determining a sentence.
See United States v. Hobbs, 845 F.3d 365, 367-68
(8th Cir. 2015) (discussing discretion of sentencing judge
related to supervised release).
The Honorable Linda R. Reade, United
States District Judge for the Northern District ...