United States v. Salcido

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4785
CESAR BELISARIO SALCIDO, a/k/a
Cesar Gomez-Lopez,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-98-46)
Submitted: January 11, 2000
Decided: February 8, 2000
Before WILKINS and TRAXLER, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Robert I. O'Hale, CLIFFORD, CLENDENIN, O'HALE & JONES,
L.L.P., Greensboro, North Carolina, for Appellant. Walter C. Holton,
Jr., United States Attorney, Robert M. Hamilton, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Cesar Belisario Salcido appeals the forty-six-month sentence he
received upon his guilty plea to illegal re-entry. See 18 U.S.C.A.
§ 1326(a), (b)(2) (West 1999). He contends that the district court
failed to apply correctly U.S. Sentencing Guidelines Manual
§ 5G1.3(c), p.s. (1997). We affirm.
Salcido was deported in 1984, under the name Cesar Gomez-
Lopez, after a federal conviction for cocaine trafficking. In 1997, he
pled guilty in federal court in North Carolina under his real name to
conspiracy to distribute marijuana. In January 1998, Salcido was sen-
tenced to a term of five years imprisonment for the marijuana conspir-
acy. The next month, Salcido was charged with illegal re-entry--the
instant offense. The probation officer calculated a guideline range of
46-57 months and noted that the district court had discretion under
USSG § 5G1.3(c) to impose a sentence that was concurrent, partially
concurrent, or consecutive to the undischarged marijuana conspiracy
sentence. Salcido requested that his sentence run concurrently with
the undischarged marijuana conspiracy sentence. However, after
exploring in some detail Salcido's explanation for his repeated
involvement in drug trafficking, considering Salcido's arguments for
a concurrent sentence, and commenting on Salcido's ability to support
his family by running legitimate businesses, the district court decided
that there were "no compelling facts" to warrant a sentence concurrent
with the five-year sentence Salcido was serving. Therefore, the court
imposed a consecutive sentence of forty-six months.
Salcido argues that in applying § 5G1.3(c) the district court failed
to follow the procedure set out in United States v. Hill, 59 F.3d 500,
502-03 (4th Cir. 1995), and United States v. Stewart, 59 F.3d 496, 498
(4th Cir. 1995). Both cases were decided before the 1995 amendment
to § 5G1.3. See Amd. 535, USSG App. C. Under the current version
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of § 5G1.3(c), the district court is not required to follow the procedure
described in Hill and Stewart. See United States v. Mosley, ___ F.3d
___, 2000 WL 1285, at *4 (4th Cir. Dec. 30, 1999).
Under the 1997 version of the U.S. Sentencing Guidelines Manual
used in sentencing Salcido, when the district court is sentencing a
defendant subject to an undischarged term of imprisonment,
§ 5G1.3(c) gives the court discretion to impose a concurrent, partially
concurrent, or consecutive sentence "to achieve a reasonable punish-
ment for the instant offense." The commentary directs that the court
should consider the factors set forth in 18 U.S.C.§ 3584 (referencing
18 U.S.C. § 3553(a)), which are: (1) the nature and circumstances of
the offense and the history and characteristics of the defendant; (2)
the need for the sentence to reflect the seriousness of the offense, pro-
mote respect for the law, and provide just punishment and adequate
deterrence, to protect the public, to provide the defendant with train-
ing or treatment as needed; (3) the kinds of sentences available; (4)
the sentencing guidelines and policy statements; and (5) the need to
avoid unwarranted sentencing disparity among defendants with simi-
lar records who have been convicted of similar conduct. See USSG
§ 3553(a). The court should also consider:
(a) the type (e.g., determinate, indeterminate/parolable)
and length of the prior undischarged sentence;
(b) the time served on the undischarged sentence and the
time likely to be served before release;
(c) the fact that the prior undischarged sentence may have
been imposed in state court rather than in federal court;
or at a different time before the same or a different fed-
eral court; and
(d) any other circumstance relevant to the determination of
an appropriate sentence for the instant offense.
USSG § 5G1.3, comment. (n.3).
Salcido does not contend that the district court failed to consider
the relevant factors, and our review of the record discloses that it did
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consider them. We therefore affirm the conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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