United States v. Mike Salinas ( 2017 )

Case: 16-10928 Document: 00513939069 Page: 1 Date Filed: 04/04/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
No. 16-10928 FILED
April 4, 2017
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
MIKE ROBERT SALINAS,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:16-CR-11-1
Before SMITH, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
Mike Robert Salinas appeals the eighteen-month term of imprisonment
imposed against him following the revocation of his supervised release. The
revocation sentence exceeds the range set forth in the nonbinding policy
statements of the Sentencing Guidelines. Salinas argues that his sentence is
procedurally unreasonable because the district court failed to provide
sufficient reasons for imposing a sentence above the advisory range. For the
reasons explained below, we AFFIRM.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 16-10928
I. Background
In 2006, Salinas pleaded guilty to possession of marijuana with intent to
distribute and was sentenced to thirty-seven months of imprisonment to be
followed by a three-year term of supervised release. His supervised release
commenced on July 1, 2013. On March 9, 2016, Salinas was arrested after
methamphetamine was discovered in his vehicle during a traffic stop. The
United States subsequently filed a motion to revoke Salinas’s supervised
release, alleging that Salinas violated the terms of his supervised release by
unlawfully using and possessing methamphetamine and marijuana, failing to
comply with required drug testing, and leaving the judicial district where he
was being supervised without permission. Salinas admitted to using
methamphetamine on a regular basis for nine months prior to his arrest and
on one occasion following his arrest.
At the revocation hearing, Salinas admitted that the allegations were
true. Salinas’s counsel read a letter from Salinas’s pastor regarding his church
membership and attempts to rehabilitate his marriage, obtain legal
employment, and separate himself from the drug culture. Salinas’s counsel
further described Salinas’s employment history, his attempt to remain drug-
free prior to his arrest, and his reason for traveling out of the judicial district.
Salinas also briefly spoke to the court and apologized for his conduct.
The district court subsequently granted the motion to revoke Salinas’s
supervised release. It found that Salinas committed a Grade C violation and
had a criminal history category of VI, which yielded an advisory range of eight
to fourteen months, U.S.S.G. § 7B1.4(a). The district court departed from the
advisory range and sentenced Salinas to eighteen months. The only
explanation provided for imposing an above-range sentence was the following
short statement: “I believe this sentence does address the issues of adequate
deterrence and protection of the public.” Salinas made no objection to his
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No. 16-10928
sentence at the revocation hearing. Salinas now appeals the sentence as
procedurally unreasonable.
II. Standard of Review
We generally review revocation sentences under the “plainly
unreasonable” standard. United States v. Miller, 634 F.3d 841, 843 (5th Cir.
2011). As Salinas acknowledges, however, he did not object to the adequacy of
the district court’s reasons for the sentence imposed, so our review is for plain
error. See United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). 1 Under
plain error review, Salinas “must show an error that is clear or obvious and
affects his substantial rights.” Id. at 260. If Salinas makes such a showing,
we have “the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id.III. Discussion
Salinas argues that his revocation sentence was procedurally
unreasonable because the district court offered no meaningful explanation for
imposing a sentence above the advisory range. Specifically, the district court
did not explain how the goals of deterrence and protection of the public apply
to Salinas’s circumstances.
The sentencing judge need only “set forth enough to satisfy the appellate
court that he has considered the parties’ arguments and has a reasoned basis
for exercising his own legal decisionmaking authority.” Rita v. United States,
551 U.S. 338, 356 (2007). When imposing a sentence above the advisory range,
the district court commits clear or obvious error when it fails to provide an
1 Salinas concedes that any argument challenging the requirement to preserve an
issue by specific objection is foreclosed by our decision in Whitelaw, but he nevertheless
challenges this requirement to preserve the issue for future review. It is well settled that we
may not overrule a prior panel decision absent an en banc or superseding Supreme Court
decision. See United States v. Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir. 2002) (quoting
Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999)).
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“explicit statement setting forth ‘the specific reason for the imposition of a
sentence different from that described’ in the guideline range.” Whitelaw, 580
F.3d at 262 (quoting 18 U.S.C. § 3553(c)(2)). However, it need not engage in a
“checklist recitation of the [sentencing] factors” under 18 U.S.C. § 3553(a).
United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). We may infer the
district court’s rationale for the sentence from the record. Whitelaw, 580 F.3d
at 263–64.
Under circumstances similar to Salinas’s, we have repeatedly affirmed
above-range revocation sentences where the district court, without any
additional explanation, explicitly identified deterrence and protection of the
public as the reasons for imposing the sentence. See, e.g., United States v.
Valdez, No. 16-10223, 2016 WL 4487661 (5th Cir. Aug. 25, 2016), cert. denied,
No. 16-6872, 2017 WL 856214 (U.S. Mar. 6, 2017); United States v. Taylor, 630
F. App’x 350 (5th Cir.), cert. denied, 136 S. Ct. 2456 (2016); United States v.
Priestley, 618 F. App’x 222 (5th Cir. 2015), cert. denied, 136 S. Ct. 922 (2016). 2
Indeed, in another revocation case against Salinas stemming from a different
predicate conviction, we recently upheld an above-range sentence involving the
exact same conduct and statement at issue in this case. See United States v.
Salinas, No. 16-10966, 2017 WL 444798 (5th Cir. Feb. 1, 2017).
As in Salinas’s other case, here, the record reflects that the court
explicitly considered deterrence and protection of the public in imposing the
above-range sentence and implicitly considered Salinas’s history and
characteristics. See 18 U.S.C. § 3553(a). The factual basis supporting the
district court’s stated reasons is implicit in Salinas’s admission that the
2 Although Valdez, Taylor, and Priestley are not “controlling precedent,” they are cited
as illustrative of how we have handled similar situations involved appeals from judgments
signed by the same district judge. Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006)
(citing 5TH CIR. R. 47.5.4).
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revocation charges were true, namely, the district court’s concern that a person
who uses methamphetamine and marijuana, avoids required drug tests, and
travels outside the judicial district in violation of his conditions of supervised
release needs an above-range sentence to deter him and protect the public. See
Whitelaw, 580 F.3d at 264 (“The factual basis supporting [the district court’s
reasons] is implicit in [its] findings that most of the revocation charges were
true.”); see also United States v. Ontiveros, 584 F. App’x 236, 237 (5th Cir. 2014)
(“The court’s reasons reflect its concern that an individual who drives while
drinking 12 beers, while on supervised release from a prior conviction under
conditions prohibiting such behavior, needs a sentence sufficient to deter and
to protect the public.”). While the better practice would be to give a more robust
explanation, in this context, the district court’s brief statement was not plain
error.
Accordingly, Salinas has not shown clear or obvious error. He also has
not shown that any potential error affected his substantial rights or seriously
affected the fairness, integrity, or public reputation of the court proceeding.
The record of the sentencing proceeding allows us to conduct a meaningful
appellate review, and there is no suggestion in the record that a more thorough
explanation would have resulted in a lower sentence. See Whitelaw, 580 F.3d
at 262–64. 3 Moreover, nothing in the record suggests that the district court
considered an improper factor or would impose a lighter sentence on remand.
See id. at 264–65. 4
AFFIRMED.
Salinas suggests that we overrule Whitelaw and hold that a judge’s failure to explain
3
a sentence necessarily deprives the defendant of meaningful appellate review. However, as
previously noted, we may not overrule Whitelaw without an en banc or a superseding
Supreme Court decision. See Lipscomb, 299 F.3d at 313 n.34.
4 For these same reasons, we would not exercise our discretion to correct any such
error.
5