United States of America v. Jose Hernandez-Loera

Appellant 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 court1

The Honorable Linda R. Reade, United 1 States District Judge for the Northern

District of Iowa.

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.

Hernandez-Loera, 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 necessary.

Because 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)).

We find 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

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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)).

At 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).

Accordingly, we affirm.