United States v. Juan Salazar , 633 F. App'x 267 ( 2016 )

Case: 15-50547 Document: 00513375684 Page: 1 Date Filed: 02/11/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-50547
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
February 11, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JUAN ANTONIO SALAZAR,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:11-CR-89-1
Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
Juan Antonio Salazar, federal prisoner # 71158-280, appeals the denial
of his motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). The district
court found that, while the requested reduction was authorized under U.S.S.G.
§ 1B1.10 and Amendment 782, a sentence reduction was not warranted upon
consideration of the 18 U.S.C. § 3553(a) factors. We generally review the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50547
district court’s denial of the motion for an abuse of discretion. United States v.
Evans, 587 F.3d 667, 672 (5th Cir. 2009).
Salazar argues that the district court relied upon an improper factor in
denying his § 3582(c)(2) motion, i.e., the state charges that were pending at the
time of his original sentencing. He asserts that arrests alone are not reliable
information for sentencing purposes and that the record contained no specific
information about the facts or circumstances underlying the pending charges.
We note that although Salazar filed a motion for reconsideration in the district
court, he did not raise the contention he raises now: that the district court
relied upon “bare” arrest records in making its determination. We need not
decide whether that failure alters the standard of review to plain error, because
we find his challenge fails even under abuse of discretion review.
We also need not decide whether the bar against considering “bare”
arrest records applies in a § 3582(c)(2) proceeding, see United States v.
Johnson, 648 F.3d 273, 276-278 (5th Cir. 2011), or whether the unadjudicated
charges listed in the PSR from the original sentencing hearing as “pending
charges” were, in fact, “bare” arrest records, see United States v. Harris, 702
F.3d 226, 229-31 (5th Cir. 2012). Considered in context, the record reflects that
the pending charges did not form the basis of the district court’s decision to
deny the § 3582(c)(2) motion. The district court instead relied on permissible
factors, including the nature and circumstances of the offense, the seriousness
of the offense, public safety concerns, Salazar’s history and characteristics, and
the need for deterrence. The district court also considered appropriate aspects
of Salazar’s criminal history (e.g., his prior convictions and his commission of
the instant offense while on probation) and found that a reduction would not
serve the goals of deterrence and punishment or protect the public. The district
court did not discuss in detail Salazar’s pending charges and instead simply
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No. 15-50547
noted that there were charges against him at the time of his sentencing for this
offense. There is no indication that the mention of the pending charges had
any bearing on the district court’s decision to deny relief.
Salazar further contends that the district court gave excessive weight to
his criminal history and failed to consider that denying his motion created
unwarranted sentencing disparities. The district court gave due consideration
to the arguments Salazar presented in favor of his motion and concluded that
a reduction was not warranted in light of the § 3553 factors and the particular
circumstances of the case. See United States v. Whitebird, 55 F.3d 1007, 1010
(5th Cir. 1995). Salazar’s request that we weigh the factors anew is unavailing.
His unwarranted-disparity argument is without merit because it amounts to a
request that the court make a sentencing reduction mandatory when requested
under amendments to the Sentencing Guidelines. See United States v. Smith,
595 F.3d 1322, 1323 (5th Cir. 2010).
Therefore, the district court did not abuse its discretion in denying relief.
See Evans, 587 F.3d at 672; Whitebird, 55 F.3d at 1010. Thus, the judgment
of the district court is AFFIRMED.
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