United States v. Salinas

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 18, 2007
Charles R. Fulbruge III
Clerk
No. 06-40567
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUMERCINDO SALINAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:02-CR-189-ALL
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Gumercindo Salinas appeals from the 12-month prison sentence
imposed following revocation of his term of supervised release.
Salinas contends that the district court violated his due-process
rights by sentencing him “based” on criminal conduct charged in
revocation-warrant violations to which he had pleaded “not true.”
Those charges had alleged that he had committed attempted murder
and unlawful restraint against his wife by choking her and
threatening her with a knife in their home.
*
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this opinion should not be published and is not precedent except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.
No. 06-40567
-2-
The Government correctly contends that Salinas’s contention
is reviewable only for plain error because Salinas failed to make
a due-process challenge in the district court. See United States
v. Magwood, 445 F.3d 826, 828 (5th Cir. 2006). To establish
plain error, the appellant must show that there is error, that it
is “clear” or “obvious,” and that it affects both his substantial
rights and the integrity of the proceedings. United States v.
Thompson, 454 F.3d 459, 464 (5th Cir. 2006), cert. denied, 127
S.Ct. 602 (2006).
Salinas has not made such a showing. Although the district
court referred to conduct charged in one of the violations to
which Salinas had pleaded not true, it did so only after Salinas
had argued, in mitigation of sentence, that his wife had signed a
“non-prosecution” affidavit with respect to the attempted-murder
and unlawful-restraint charges. The court did not explicitly
refer to that information in imposing Salinas’s revocation
sentence and thus did not indicate that the sentence was in any
way “based” on that information. There was thus no “clear” or
“obvious” violation of Salinas’s due-process rights. See
Thompson, 454 F.3d at 464; Morrissey v. Brewer, 408 U.S. 471,
488-89 (1972). Salinas also has not established that the 12-
month sentence, which was two months above the guideline range
for the violations to which he did plead “true,” was plainly
unreasonable or unreasonable. See United States v. Hinson, 429
No. 06-40567
-3-
F.3d 114, 119-20 (5th Cir. 2005), cert. denied, 126 S. Ct. 1804(2006).
The judgment of the district court is AFFIRMED.