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