United States v. Salazar-Grimaldo ( 2023 )

Case: 23-10398 Document: 00516981576 Page: 1 Date Filed: 11/28/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-10398
FILED
November 28, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Juan Salazar-Grimaldo,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:21-CR-636-1
______________________________
Before Elrod, Oldham, and Wilson, Circuit Judges.
Per Curiam: *
Juan Salazar-Grimaldo pleaded guilty to illegal reentry following prior
removal. The district court sentenced him within the guidelines range to 37
months in prison. He appeals his sentence.
Salazar-Grimaldo contends that the district court erred by considering
his prior arrest and indictment for aggravated assault with a deadly weapon
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-10398 Document: 00516981576 Page: 2 Date Filed: 11/28/2023
No. 23-10398
to determine his sentence. He argues that the district court improperly relied
on the description of the charge contained in the presentence report (PSR).
He asserts that the description lacked sufficient indicia of reliability and was
tantamount to a bare arrest record. Because he did not assert this issue in the
district court, we apply plain error review. See United States v. Williams, 620
F.3d 483, 493 (5th Cir. 2010).
“[O]ur precedent is clear that the consideration of the mere fact of a
prior arrest is prohibited.” United States v. Harris, 702 F.3d 226, 231 (5th
Cir. 2012); see also United States v. Johnson, 648 F.3d 273, 278 (5th Cir. 2011)
(“[I]t is error for a district court to consider a defendant’s ‘bare arrest
record’ at sentencing.”). However, the PSR here did not just note the fact
of the arrest and indictment without further details. Rather, the description
in the PSR gave details concerning the factual underpinnings of the charge
and had corresponding information about the conduct that led to the arrest
and indictment for aggravated assault with a deadly weapon; the PSR, inter
alia, identified the alleged victim, included information about the underlying
conduct, and set forth the reason why the case was dismissed. See United
States v. Reyna-Aragon, 992 F.3d 381, 389-91 (5th Cir. 2021). Thus, there was
an adequate evidentiary basis, and the PSR could be viewed as reliable
because Salazar-Grimaldo did not present rebuttal evidence or show that the
information in the PSR should not be credited. The district court therefore
could adopt the information in the PSR and rely upon its description of the
charge for sentencing purposes. See id. at 390; Harris, 702 F.3d at 230-31.
Further, Salazar-Grimaldo has not shown that the district court’s
consideration of the PSR’s description of the charge in conjunction with
other factors—including, inter alia, his convictions, his illegal reentry, and
the 18 U.S.C. § 3553 factors—affected his substantial rights. See Reyna-
Aragon; 992 F.3d at 391.
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No. 23-10398
Salazar-Grimaldo further challenges the constitutionality of 8 U.S.C.
§ 1326(b). He contends that § 1326(b) allows a sentence above the otherwise
applicable statutory maximum established by § 1326(a) to be imposed based
on facts that are not alleged in the indictment or found by a jury beyond a
reasonable doubt. He correctly concedes that his claim is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), and raises it
only to preserve it for further review. See United States v. Pervis, 937 F.3d
546, 553-54 (5th Cir. 2019).
The judgment of the district court is AFFIRMED.
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