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United States v. Azcona-Polanco

United States Court of Appeals, Third Circuit

July 27, 2017

UNITED STATES OF AMERICA
v.
FRANCISCO TEODORO AZCONA-POLANCO Francisco Azcona-Polanco, Appellant

          Submitted Under Third Circuit LAR 34.1(a) March 28, 2017

         Appeal from the United States District Court for the District of New Jersey (D.N.J. No. 1-15-cr-00504-001) District Judge: Honorable Robert B. Kugler

          Christopher O'Malley Office of Federal Public Defender Camden Counsel for Appellant

          Paul J. Fishman, Mark E. Coyne, Desiree L. Grace, Office of United States Attorney Counsel for Appellee

          Before: AMBRO, VANASKIE and RESTREPO, Circuit Judges.

          OPINION OF THE COURT

          RESTREPO, Circuit Judge.

         Deportable immigrants are presumptively exempt from the discretionary imposition of supervised release under Section 5D1.1(c) of the Sentencing Guidelines. Appellant Francisco Azcona-Polanco, a deportable immigrant, argues that the District Court committed a procedural sentencing error by sentencing him to a term of supervised release without an adequate explanation. We write to clarify the procedural obligations of a district court under Section 5D1.1(c). Azcona-Polanco also challenges his sentence of imprisonment as substantively unreasonable. On both claims, we will affirm.

         I

         Azcona-Polanco, a citizen of the Dominican Republic, was admitted to the United States as a lawful permanent resident in 1972. In 1994, he was ordered removed based upon a conviction for heroin distribution, but never left the country. In 1997, Azcona-Polanco was convicted of conspiracy to violate federal narcotics laws and sentenced to 168 months' incarceration. He was deported at the expiration of his federal sentence in 2009, but thereafter reentered the United States illegally and assumed an alias, having purchased a citizen's birth certificate and Social Security card.

         Azcona-Polanco was arrested and later pled guilty to illegal reentry, 8 U.S.C. §§ 1326(a) and (b)(2). His sentencing range was 41 to 51 months. The Guideline range for a term of supervised release was 1 to 3 years, U.S.S.G. § 5D1.2(a)(2), with a statutory maximum of 3 years, 18 U.S.C. § 3583(b)(2).[1] Azcona-Polanco, however, was presumptively exempt from supervised release under Section 5D1.1(c) because he is a deportable immigrant. U.S.S.G. § 5D1.1(c). At least two documents submitted to the District Court noted this presumption: the Presentence Investigation Report and Azcona-Polanco's sentencing memorandum.

         The District Court sentenced Azcona-Polanco to 41 months' imprisonment and 3 years' supervised release. As to the term of supervised release, the Court stated, "Now clearly I understand that he's going to be deported . . ., and if he follows the law and does not reenter the United States, he obviously will never have to report on a regular basis to Probation. Nevertheless I'm imposing this condition in case he does illegally reenter the United States he must report in person to Probation." App. 71. The District Court also stated generally that "[t]here is obviously a need for specific deterrence because he keeps coming back when he's been told not to come back." App. 70. Azcona-Polanco did not object to the imposition of supervised release.

         II

         The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

         We review Azcona-Polanco's claim that the District Court committed a procedural sentencing error for "plain error" because he failed to object in the District Court. Fed. R. Crim. P. 52(b). The plain error test requires (1) an error; (2) that is "clear or obvious" and (3) "affected the defendant's substantial rights, which in the ordinary case means he or she must 'show a reasonable probability that, but for the error, ' the outcome of the proceeding would have been different." Molina-Martinez v. United States, 136 S.Ct. 1338, 1343 (2016) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 76, 82 (2004)). If these conditions are met, we will exercise our discretion to correct the error if it "seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. (quoting United States v. Olano, 507 ...


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