USA v. Jose Saldana-Martinez

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USA v. Jose Saldana-Martinez

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Case: 09-11217

Document: 00511218736

Page: 1

Date Filed: 08/30/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-11217 S u m m a r y Calendar August 30, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. J O S E FELICIANO SALDANA-MARTINEZ, also known as Jose SoldanaM a r t in e z , also known as Jose F. Saldana-Martinez, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 5:09-CR-73-1

B e fo r e DAVIS, SMITH and SOUTHWICK, Circuit Judges. P E R CURIAM:* J o s e Feliciano Saldana-Martinez appeals the sentence imposed following t h e revocation of his supervised release. He contends that the district court's c o m p le t e failure to explain the sentence and address his nonfrivolous arguments in support of a lower sentence did not satisfy the requirements of procedural r e a s o n a b le n e s s under Rita v. United States, 551 U.S. 338, 356-57 (2007). Saldana-Martinez acknowledges that this court applies plain error review when

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

*

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Case: 09-11217

Document: 00511218736 Page: 2 No. 09-11217

Date Filed: 08/30/2010

a defendant fails to object to the district court's failure to explain the sentence. Nevertheless, he seeks to preserve for further review his contention that an o b je c t io n is not required when it is premised on the district court's failure to a d d r e s s arguments in support of a lower sentence. Alternatively, he argues that t h e strict application of the plain error standard should be mitigated by defense c o u n s e l's specific and explicit request that the district court consider an u n d erly in g sentencing error when determining his revocation sentence. Because S a ld a n a -M a r t in e z did not object to the district court's failure to explain the r e v o c a t io n sentence in the district court, plain error review applies. See United S ta te s v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). T h e district court's failure to explain the within-guidelines sentence im p o s e d upon revocation of Saldana-Martinez's supervised release was error u n d e r Rita that was clear or obvious. See United States v. Mondragon-Santiago, 5 6 4 F.3d 357, 364 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). However, S a ld a n a -M a r t in e z has not shown that the error affected his substantial rights. In Mondragon-Santiago, this court rejected the defendant's argument that the d is t r ic t court's failure to explain the sentence affected his substantial rights b e c a u s e it made meaningful appellate review impossible, holding that the a r g u m e n t was foreclosed by circuit precedent, "so far as within-Guidelines s e n te n c e s [were] concerned." Id. at 365. Further, although Saldana-Martinez a r g u e s that there was a reasonable probability that more extensive c o n s id e r a t io n of his argument regarding the underlying sentencing error would h a v e led the court to agree that he should not have been treated as a category I I offender, he has not shown that an explanation would have changed his w it h in -g u id e lin e s sentence. See id. Therefore, there is no reversible plain error, a n d the district court's judgment is AFFIRMED.

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