By Elizabeth DeFrance
On July 7, 2015, the Fourth Circuit issued a published opinion in the criminal case U.S. v. Aplicano-Oyuela. The Appellant, Gerson Arturo Aplicano-Oyuela (“Aplicano”) pled guilty to illegal reentry after his removal following a felony conviction, and received a term of three years supervised release. He appealed the term of supervised release, arguing that it was procedurally and substantively unreasonable, and the sentencing judge failed to advise him on supervised release before accepting Aplicano’s guilty plea in violation of the Federal Rules of Criminal Procedure Rule 11.
Aplicano had a History of Illegal Entry and Criminal Activity
Aplicano is a native citizen of Honduras, and illegally entered the United States in 2002. Between 2006 and 2011 he plead guilty to second-degree assault and driving without a license, and was convicted of criminal mischief. He was removed to Honduras in January 2012, and illegally reentered the United States within the next year. He was arrested several times in 2013, and plead guilty to another second-degree assault charge.
On July 26, 2013, a grand jury indicted Aplicano with illegal reentry by an alien who had previously been removed after a felony conviction. He initially plead not guilty, but later submitted a letter through his attorney stating that he pled guilty “without benefit of a plea agreement,” and acknowledged that the maximum sentence for his offense included a three year term of supervised release. During the plea hearing, it was established that Aplicano understood he could be sentenced to the maximum penalty, including supervised release.
Aplicano’s presentence report (PSR) indicated that the Guidelines range for his offense level was ten to sixteen months, and indicated a supervised release term of not more than three years could be imposed if required by statute, if the court sentenced the defendant to a term of imprisonment longer than one year. The PSR also indicated that, pursuant to U.S.S.G. § 5D1.1(c), “the 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.” The PSR report recommended a supervised release term of two years due to Aplicano’s criminal history.
Applicano submitted a letter requesting the length of imprisonment be reduced, but did not address the supervised release recommendation or attempt to withdraw his guilty plea. During the sentencing hearing Aplicano urged the court to consider the violent gang attacks his family had suffered in Honduras. The district court did consider § 3553(a) factors, but ultimately found Aplicano’s story unconvincing. The district court focused much attention on Aplicano’s multiple illegal entries and propensity to commit crimes while in the United States. The district court sentenced Aplicano to sixteen months in prison and a term of three years supervised release.
Alleged Sentencing Errors are Reviewed for Plain Error
Challenges to sentencing not preserved in the lower court are reviewed for plain error, as is a contest to a guilty plea the defendant did not attempt to withdraw. The defendant must prove that the error affects his substantial rights.
Imposition of a term of supervised release is procedurally reasonable if it is within the guidelines. The imposition of supervised release is “not a departure from the Guidelines if the district court finds that supervised release would provide an added measure of deterrence and protection based on the facts and circumstances of a particular case.”
When determining the substantive reasonableness of a sentence, the court must consider the totality of the circumstances, including any variance from the Guidelines. If the sentence is within the Guidelines range, the reviewing court may make a presumption of reasonableness. The defendant may rebut this presumption using the § 3553(a) factors, including the sentencing court’s use of an improper factor not included in § 3553(a).
The Federal Rules of Criminal Procedure 11(b)(1)(H) states, “[b]efore the court accepts a plea of guilty [it] must inform the defendant of, and determine that the defendant understands, … any maximum possible penalty, including imprisonment, fine, and term of supervised release.” Fourth Circuit precedent also requires the sentencing judge personally inform the defendant and assure he understands the consequences of his guilty plea.
The Supervised Release Term was Intended as a Deterrent
In determining whether the term of supervised release was procedurally unreasonable, the Court noted that the district court failed to specifically discuss the Guidelines or that expressly state that the imposition of supervised release was intended to deter the defendant and protect the community. However, the Court followed reasoning from Second Circuit, stating that it is sufficient if the sentencing court “(1) is aware of Guidelines section 5D1.1(c); (2) considers a defendant’s specific circumstances and the § 3553(a) factors; and (3) determines that additional deterrence is needed.” The Court reasoned that the district court was aware of section 5D1.1(c) because it adopted the PSR “without change” which included the recommendations from 5D1.1(c). It Also concluded that the district court adequately considered Aplicano’s specific circumstances because its opinion discussed Aplicano’s description of the violence his family experienced in Honduras, and his criminal history in the United States. Finally, the district court determined additional deterrence was necessary because it stated, “I think you may well try to get back in the country again.” Accordingly, the Court determined that the imposition of supervised release was not procedurally unreasonable.
In his challenge to the substantive reasonableness of the supervised release term, Aplicano argued that the district court’s statement that it would allow the authorities to “get him in jail much faster than if we went through a separate prosecution” indicated the use of an improper factor. However, the Court reasoned that this statement only indicated that the district court intended the term of supervised release to deter and protect the community. Accordingly, the imposition of supervised release was not substantively unreasonable.
In considering whether the district court violated Rule 11, the Court noted that Aplicano was advised during the plea hearing that he could receive the maximum term of three years supervised release. The Court reasoned that even if the district court had erred by failing to properly inform him of the nature of supervised release, a vacatur of his guilty plea was not warranted because the error did not affect his substantial rights. Specifically, Aplicano did not identify anything in the record indicating he would not have plead guilty if the district court had advised him on the nature of supervised release. The Court found it compelling that Aplicano made no effort to withdraw his guilty plea after the term of supervised release was imposed. Therefore, the Court concluded that Aplicano’s substantial rights were not affected.
Judgment of the District Court is Affirmed
The Court held that there was no error because imposition of supervised release was procedurally and substantially reasonable. It also held that Vacatur was unwarranted because the presumed error did not affect Aplicano’s substantial rights.
