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Media Alerts - United States v. Alvarado -- Fourth Circuit
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October 1, 2015
  United States v. Alvarado -- Fourth Circuit
Headline: Additional Deterrence Not Required: Supervised Release for Non-U.S. Citizen Facing Post-Incarceration Removal Only Warranted Where Additional Deterrence Needed.

Areas of Law: Immigration Law, Criminal Law

Issue Presented: Whether the district court's sentence of three years supervised release following Alvarado's 41-month prison sentence is procedurally and substantively reasonable.

Brief Summary: In a per curiam opinion, the United States Court of Appeals for the Fourth Circuit ("the court") found the district court did not give proper consideration to Jose Adolfo Benitez Alvarado's specific circumstances before sentencing him to a term of imprisonment and supervised release. Alvarado pled guilty to illegal reentry into the United States and was sentenced to three years of supervised release following his 41-month prison sentence. The Fourth Circuit vacated the three-year term of supervised release and remanded for resentencing. In reaching its decision, the court adopted the 3-part test from United States v. Aplicano-Oyuela, _F.3d_, 2015 WL 4081258 (4th Cir. July 7, 2015), which had previously been established by the Second Circuit in United States v. Alvarado, 720 F.3d 153, 155 (2d Cir. 2013).

Extended Summary: Jose Alvarado is a native and citizen of El Salvador who was residing illegally in the U.S. In 2002, following a robbery conviction, Alvarado was deported. Alvarado returned to the United States and was removed again in 2011. Most recently, in 2013, Alvarado was arrested for and convicted of reckless endangerment. Because the 2002 order of removal had never been rescinded, Alvarado also pled guilty to illegal reentry into the United States.

Prior to sentencing, the district court told Alvarado he could receive a sentence that included a period of supervised release. Supervised release is a post-incarceration condition. If a person reenters the country while on supervised release, the court can immediately return the person to prison without starting a separate prosecution. Supervised release is generally imposed when a sentencing court believes additional deterrence is needed to prevent an individual from returning to the country illegally. At sentencing, the government requested 52 months and Alvarado asked for 27-33 months. He was ultimately sentenced to 41 months imprisonment followed by three years of supervised release. Alvarado did not object to the term of supervised release at the time of sentencing. However, he later appealed the supervised release portion of his sentence, on the
basis that it was procedurally and substantively unreasonable.

The United States Court of Appeals for the Fourth Circuit first found that Alvarado failed to raise this issue during sentencing, and as a result, did not preserve the issue. The court nonetheless agreed to use plain error review to assess his claim. Plain error review, as applied in this case, is a three-part test under which the appellant is tasked with establishing there is a sentencing error, that was plain, and that affected his substantial rights. If the appellant satisfies these elements, the court has the discretion to cure the error but will not do so unless the error "seriously affects the fairness, integrity or public reputation of judicial proceedings."

Turning to the facts before it, the court explained that its review for procedural reasonableness of the imposition of supervised release for an illegal reentry case includes: whether the district court is aware of the sentencing guidelines; whether the district court considered the defendant's specific circumstances and the section 3553(a) factors (including the nature and circumstances of the offense; the defendant's history and characteristics; the need to deter criminal conduct; the need to protect the community and policy reasons); and the need for additional deterrence. The court adopted this test recently in United States v. Aplicano-Oyuela, _F.3d_, 2015 WL 4081258 (4th Cir. July 7, 2015). In Aplicano, similar to the case at hand, the appellant illegally reentered the United States, was sentenced to supervised release following his incarceration and appealed his supervised release. The court affirmed Aplicano's supervised release, explaining that his propensity to reenter the United States illegally and commit further crime was so great that he needed additional deterrence.

In the case at hand, however, the outcome was very different because the lower court failed to justify the need for additional deterrence to prevent Alvarado from illegally reentering the United States. During sentencing, Alvarado explained that the only reason he returned to the United States was because his family had been here. Alvarado went on to state that his family had since moved back to El Salvador and as a result, he had no reason to come back to the United States. The lower court failed to take these circumstances into account, and as a result, the Fourth Circuit held that sentencing Alvarado to supervised release was plain error that substantially affected his rights. The court therefore vacated and remanded the supervised release portion of his sentence.

To read the full opinion, click here.

Panel: Judges Thacker, Harris, and Davis

Argument Date: 07/23/2015

Date of Issued Opinion: 08/27/2015

Docket Number: Case No. 14-4784

Decided: Vacated in part and remanded by unpublished per curiam opinion

Case Alert Author: Janna Domico, Univ. of Maryland Carey School of Law

Counsel: James Wyda, FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Meghan Skelton, FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, UNITED STATES ATTORNEY, Baltimore Maryland, for Appellee. Zachary A. Myers, ASSISTANT UNITED STATES ATTORNEY, Baltimore Maryland, for Appellee.

Author of Opinion: Per curiam

Dissenting Opinion: None

Case Alert Circuit Supervisor:
Professor Renée Hutchins

Edited: 10/05/2015 at 03:33 PM by Renee Hutchins

    Posted By: Renee Hutchins @ 10/01/2015 02:05 PM     4th Circuit  

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