United States v. Salazar , 232 F. App'x 292 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5050
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FAUSTINO CAMARILLO SALAZAR,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:06-cr-00132-JAB)
Submitted: June 11, 2007 Decided: July 9, 2007
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Scott Coalter, MCKINNEY & JUSTICE, P.A., Greensboro, North
Carolina, for Appellant. Angela Hewlett Miller, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Faustino Camarillo Salazar was charged in a one count
indictment with being an alien found in the United States after
having been convicted of an aggravated felony and who had
previously been deported and not received the consent of the
Attorney General or Secretary for Homeland Security to apply for
re-admission, in violation of 8 U.S.C. §§ 1326(a) and (b)(2)
(2000).
On May 11, 1995, Salazar was convicted in the Superior
Court of Fresno County, State of California, of possession of
cocaine for sale. Salazar was sentenced to three years in prison
and, subsequently, was deported to Mexico. On February 12, 2006,
Salazar was arrested in Winston-Salem, North Carolina and charged
with Driving While Impaired. Salazar was then charged with illegal
re-entry. Salazar pled guilty to the illegal re-entry charge
pursuant to a plea agreement and was sentenced to forty-eight
months’ imprisonment. Salazar timely noted an appeal and has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967).*
Salazar raises only one issue on appeal - whether his sentence was
reasonable and complied with United States v. Booker, 543 U.S. 220(2005). We affirm the judgment of the district court.
*
Salazar was informed of his right to file a pro se
supplemental brief; he has not done so.
- 2 -
Following Booker, a district court must engage in a
multi-step process at sentencing. First, after making appropriate
findings of fact, the court must correctly determine the applicable
advisory guidelines range and consult the range in imposing
sentence. United States v. Moreland, 437 F.3d 424, 432 (4th Cir.
2006); United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005).
The court is then required to consider “other relevant factors set
forth in the guidelines and those factors set forth in § 3553(a)
before imposing sentence.” Hughes, 401 F.3d at 546. “A sentence
that falls within the properly calculated advisory guideline range
is entitled to a rebuttable presumption of reasonableness.”
Moreland, 437 F.3d at 443. This court will affirm a sentence as
long as it is within the prescribed statutory range and is
reasonable. Hughes, 401 F.3d at 547. Reasonableness review
involves procedural and substantive components. Moreland, 437 F.3d
at 434. Here, Salazar’s sentence was both procedurally and
substantively reasonable.
In preparing Salazar’s pre-sentence report, the probation
officer correctly determined Salazar’s base offense level, criminal
history points, and adjustment for acceptance of responsibility.
Based on a total offense level of twenty-one and a criminal history
category of III, Salazar’s resulting guidelines range recommended
a sentence of 46-57 months’ imprisonment. After considering the
applicable advisory guidelines range, the district court
- 3 -
specifically stated that it had considered counsel’s sentencing
argument and the factors in § 3553. The court then imposed a
sentence of forty-eight months, which was at the low end of
Salazar’s guidelines range. Accordingly, Salazar’s sentence was
procedurally reasonable.
Salazar’s sentence was also substantively reasonable.
Salazar had previously been convicted of possession of cocaine for
sale and had been deported. Salazar, however, entered a guilty
plea to the offense charged in the current indictment and accepted
responsibility for his illegal re-entry. Also, Salazar faced a
statutory maximum sentence of twenty years’ imprisonment.
Accordingly, Salazar’s sentence, at the low end of his guidelines
range, was substantively reasonable.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Salazar’s conviction and sentence. This court
requires that counsel inform Salazar in writing, of the right to
petition the Supreme Court of the United States for further review.
If Salazar requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Salazar.
- 4 -
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
- 5 -