United States v. Salazar-Garcia

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 24, 2008
No. 07-40057 Charles R. Fulbruge III
Conference Calendar Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
PEDRO SALAZAR-GARCIA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:06-CR-810-1
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Pedro Salazar-Garcia (“Salazar-Garcia”) was
convicted of illegal re-entry into the United States after having been deported
and was ordered to serve a 70-month term of imprisonment followed by a three-
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
year term of supervised relief. This Court affirmed the sentence imposed by the
District Court. The United States Supreme Court granted certiorari, vacated
the judgment and remanded to this Court for further consideration in light of
Gall v. United States, 128 S. Ct. 586 (2007). Salazar-Garcia seeks remand to the
district court for re-sentencing, and the United States seeks summary re-entry
of this Court’s 2007 order.
Gall establishes a two-part framework for appellate review of federal
sentencing. Gall, 128 S. Ct. 586, 597 (2007). The appellate court must first
“ensure that the district court committed no significant procedural error, such
as... failing to adequately explain the chosen sentence.” Id. Second, the court
examines the sentence’s substantive reasonableness. Id. The standard of review
under both parts of the analysis is abuse of discretion. Id.
Salazar-Garcia claims that the district court committed a significant
procedural error by failing to adequately explain the sentence it chose. Because
Salazar-Garcia did not object to this error below, we review the procedural
reasonableness of the sentence only for plain error. See United States v.
Hernandez-Martinez, 485 F.3d 270, 272-73 (5th Cir. 2007). The district court
did not commit plain error in imposing the sentence; the judge properly
calculated and applied the advisory Guidelines sentence, and as justification for
the sentence adopted the findings in the presentence report.
Salazar-Garcia next argues that the sentence was substantively
unreasonable as it was excessive, and that it should not be entitled to deference
because the basis for the Guidelines sentence for illegal re-entry is not
empirically grounded.
In our affirmation of the District Court’s sentence, we applied a
presumption of reasonableness to sentences that fall within the range of the
Guidelines. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006) and Rita
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v. United States, 127 S. Ct. 2456, 2462-66 (2007). This holding is unchanged by
Gall. Under Gall, “[i]f the sentence is within the Guidelines range, the appellate
court may, but is not required to, apply a presumption of reasonableness.” Gall,
128 S. Ct. at 597 (citing to Rita, 127 S. Ct. at 2462). Salazar-Garcia is unable to
rebut the reasonableness presumption we apply in this case. The district judge
considered Salazar-Garcia’s objections to the presentence report as well as
Salazar-Garcia’s argument that the sentence was excessive given that it was a
four-fold increase from the one he had received earlier.
We likewise reject Salazar-Garcia’s related argument that Guideline §
2L1.2))the illegal re-entry guideline under which he was sentenced))is entitled
to little deference because it is not empirically grounded. Salazar-Garcia
primarily relies upon the companion case to Gall, Kimbrough v. United States,
128 S. Ct. 558 (2007), in which the Supreme Court held that district courts did
not abuse their discretion by departing from the advisory Sentencing Guidelines
based on their disagreement with the sentencing disparity for crack and powder
cocaine offenses. However, the district court was not foreclosed by our pre-
Kimbrough precedent from imposing a lower sentence than that advised by §
2L1.2. See United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.
2008); United States v. Gomez-Herrera, 523 F.3d 554, 558 n.1 (5th Cir. 2008).
We see no reason not to apply the presumption of reasonableness to the district
court’s decision not to depart from the Guideline in this case.
Salazar-Garcia has not demonstrated that the sentence imposed by the
district court was procedurally or substantively unreasonable under Gall. We
therefore AFFIRM the judgment of the district court.
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