United States v. Salazar

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 12, 2008
No. 07-40368
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ARMANDINA SALAZAR
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-345-1
Before HIGGINBOTHAM, STEWART and ELROD, Circuit Judges.
PER CURIAM:*
Armandina Salazar pleaded guilty to a single-count indictment charging
her with bank fraud. She was sentenced at the bottom of the Guideline
imprisonment range to a 15-month term of imprisonment and to a five-year
period of supervised release. Salazar was ordered to pay restitution to Texas
State Bank in the amount of $24,980.00, and to Perez Consulting Engineers, in
the amount of $130,052.97. For reasons discussed below, the judgment is
AFFIRMED.
*
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should not be published and is not precedent except under the limited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. 07-40368
Ordinarily, we review criminal sentences for reasonableness using an
abuse-of-discretion standard. Gall v. United States, 128 S. Ct. 586, 597 (2007).
Because the issues Salazar wishes to raise on appeal were not presented to the
district court, however, our review is for plain error. United States v. Lewis, 412
F.3d 614, 615–16 (5th Cir. 2005); United States v. Villegas, 404 F.3d 355, 358
(5th Cir. 2005).
Salazar contends that the district court erred in determining the amount
of the loss and by considering relevant conduct in determining her sentence.
Invoking Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v.
Booker, 543 U.S. 220 (2005), Salazar complains that the losses sustained by
Perez Consulting Engineers were not alleged in the indictment and proved
beyond a reasonable doubt. These contentions are without merit.
The district court did not violate Apprendi because the 15-month term of
imprisonment imposed did not exceed the statutory maximum of 30 years. See
Apprendi, 530 U.S. at 490; United States v. Keith, 230 F.3d 784, 787 (5th Cir.
2000); see also 18 U.S.C. § 1344(2).
By rendering the Sentencing Guidelines advisory only, Booker eliminated
Sixth Amendment concerns that would otherwise have prohibited sentencing
judges from finding all facts relevant to sentencing. United States v. Mares,
402 F.3d 511, 519 (5th Cir. 2005). Following Booker, “The sentencing judge is
entitled to find by a preponderance of the evidence all the facts relevant to the
determination of a Guideline sentencing range and all facts relevant to the
determination of a non-Guidelines sentence.” Id.; United States v. Johnson, 445
F.3d 793, 798 (5th Cir. 2006), cert. denied, 126 S. Ct. 2884 (2006). The facts
relevant to sentencing include relevant conduct under U.S.S.G. § 1B1.3. United
States v. Alonzo, 435 F.3d 551, 553 (5th Cir. 2006). Consequently, the district
court did not abuse its discretion in considering the third party losses as relevant
conduct in determining Salazar’s sentence. See Johnson, 445 F.3d at 798; see
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No. 07-40368
also Gall, 128 S. Ct. at 597. There was no error, plain or otherwise. See Lewis,
412 F.3d at 615–16; Villegas, 404 F.3d at 358.
Salazar complains that the district court erred in failing to allow her
sufficient time to make restitution, thereby making her ineligible for a probated
or lesser sentence. This argument finds no support in the record. Under FED.
R. CRIM. P. 32(b)(1), “The court must impose sentence without unnecessary
delay.” Given the many continuances requested by Salazar (ostensibly for the
purpose of facilitating payment of restitution) and Salazar’s failure to make any
restitution payments prior to the sentencing hearing, the district court did not
abuse its discretion in failing to continue the sentencing hearing and in
sentencing Salazar to a term of imprisonment. See Gall, 128 S. Ct. at 597.
There was no error, plain or otherwise. See Lewis, 412 F.3d at 615–16; Villegas,
404 F.3d at 358.
Salazar contends that trial counsel rendered ineffective assistance in
failing to advise her to make early restitution. We do not reach this issue
because it was not raised in the district court and the record is undeveloped. See
United States v. Lampazianie, 251 F.3d 519, 527 (5th Cir. 2001).
AFFIRMED.
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