USA v. Mario Salgado

Filing

UNPUBLISHED OPINION FILED. [09-11230 Affirmed ] Judge: EHJ , Judge: JES , Judge: EBC Mandate pull date is 11/17/2010 for Appellant Mario Salgado [09-11230]

USA v. Mario Salgadoase: 09-11230 C

Document: 00511276124 Page: 1 Date Filed: 10/27/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-11230 S u m m a r y Calendar October 27, 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. M A R I O SALGADO, 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-57-1

B e fo r e JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges. P E R CURIAM:* M a r io Salgado pleaded guilty to illegal reentry after deportation in v io la t io n of 8 U.S.C. § 1326 and was sentenced to 63 months of imprisonment a n d three years of supervised release. Salgado appeals his sentence, arguing t h a t the district court's failure to explain the sentence and address his n o n fr iv o lo u s arguments in support of a lower sentence did not satisfy the r e q u ir e m e n t s of procedural reasonableness under Rita v. United States, 551 U.S. 3 3 8 , 356-57 (2007). Salgado acknowledges that this court reviews for plain error
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-11230 Document: 00511276124 Page: 2 Date Filed: 10/27/2010 No. 09-11230 w h e n a defendant fails to object to the district court's failure to explain the s e n te n c e . Nevertheless, he seeks to preserve for further review his contention t h a t an objection is not required when it is premised on the district court's fa ilu r e to address arguments in support of a lower sentence. Because Salgado d id not object to the district court's failure to explain the sentence, plain error r e v ie w applies. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5 t h Cir.), cert. denied, 130 S. Ct. 192 (2009). T h e district court's failure to explain the within-guidelines sentence b e y o n d referring to punishment and deterrence was not error under Rita that w a s clear or obvious based on Salgado's arguments that the guideline range was a p p r o p r ia te and for a sentence at the low end of the guidelines. See United S ta te s v. Rodrigeuz, 523 F.3d 519, 525-26 (5th Cir. 2008). Salgado did not clearly a s k for a sentence below the guideline range. However, even if there was clear o r obvious error, Salgado has not shown that the error affected his substantial r ig h t s . Although Salgado argues that there was a reasonable probability that fu lle r consideration of his arguments would have led the court to impose a lower s e n t e n c e , he has not shown that an explanation for the rejection of his a r g u m e n t s would have changed his within-guidelines sentence. See MondragonS a n tia g o , 564 F.3d at 365. There is no reversible plain error, and the district c o u r t's judgment is AFFIRMED.

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