USA v. Luis Salas-Sanchez

Filing

UNPUBLISHED OPINION FILED. [09-41243 Affirmed ] Judge: CDK , Judge: WG , Judge: WED Mandate pull date is 11/23/2010 for Appellant Luis Salas-Sanchez [09-41243]

USA v. Luis Salas-Sanchez 09-41243 Case:

Document: 00511282259 Page: 1 Date Filed: 11/02/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 2, 2010 N o . 09-41243 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. L U I S SALAS-SANCHEZ 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 for the Southern District of Texas, Brownsville Division 1 :0 9 -C R -8 7 3 -2

B e fo r e KING, GARWOOD, and DAVIS, Circuit Judges. P E R CURIAM:* D e fe n d a n t Luis Salas-Sanchez (Salas) appeals his sentence after a guilty p le a conviction for possession with intent to distribute less than 50 kilograms of m a r i j u a n a in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D); 18 U.S.C. § 2. Salas a r g u e s that the district court committed reversible plain error by assessing one c r im in a l history point under U.S.S.G. § 4A1.2(c)(1) for a prior evading arrest c o n v ic t io n that did not result in a term of probation of more than one year, thereby raising Salas-Sanchez's criminal history category from III to IV . He
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-41243 Document: 00511282259 Page: 2 Date Filed: 11/02/2010

No. 09-41243 a lso argues that the district court erroneously applied the Sentencing Guidelines b y failing to award a minor role adjustment under U.S.S.G. § 3B1.2(b). We a ffir m . I. Salas pleaded guilty to possession with intent to distribute 45.3 kilograms o f marijuana. The facts underlying the offense show that, in June 2009, the o p e r a t o r of a remote video surveillance camera observed three men carrying la r g e duffel bags on their backs traveling north near a port of entry in B r o w n s v ille , Texas. Border Patrol agents proceeded to the area. As the agents a p p r o a c h e d , the three men hid in the brush. Shortly thereafter, agents found S a la s , a codefendant, and a minor lying face down on top of their respective d u ffle bags. The three bags contained a total of 19 bricks of marijuana with a c o m b in e d weight of 45.3 kilograms. After the suspects were taken to a Border Patrol station, Salas waived his M ir a n d a1 rights and agreed to talk to agents. Salas stated that he and some o t h e r individuals were crossing the Rio Grande River into the United States to fin d work when they were approached by an unknown man who forced them to c a r r y the marijuana and told them they would receive $300 after delivery. The d is t r ic t court sentenced Salas to 37 months of imprisonment and three years of s u p e r v is e d release.2 Salas filed a timely notice of appeal. II.

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Miranda v. Arizona, 384 U.S. 436 (1966).

Although the PSR and records of the Assistant United States Attorney indicate that there was a plea agreement, defense counsel asserted during the sentencing hearing that there was no agreement; as a result, the district court proceeded as if no agreement existed.

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Case: 09-41243 Document: 00511282259 Page: 3 Date Filed: 11/02/2010

No. 09-41243 S a la s argues on appeal that the district court committed reversible plain e r r o r by assessing one criminal history point under U.S.S.G. § 4A1.2(c)(1) for a 2 0 0 7 evading arrest conviction that did not result in a term of probation of more t h a n one year, thereby raising his criminal history category from III to IV. Salas r a is e d no objections to his criminal history calculation in the district court; t h e r e fo r e , review is for plain error. United States v. Arviso-Mata, 442 F.3d 382, 3 8 4 (5th Cir. 2006). To prevail, Salas must show a forfeited error that is clear o r obvious and affects his substantial rights. Puckett v. United States, 129 S. Ct. 1 4 2 3 , 1429 (2009). "A sentencing error affects a defendant's substantial rights if he can show a reasonable probability that, but for the district court's m i s a p p lic a t io n of the Guidelines, [he] would have received a lesser sentence." United States v. John, 597 F.3d 263, 284-85 (5th Cir. 2010) (internal quotation m a r k s and citation omitted). Even if such a showing is made, this court has the d is c r e t io n to correct the error, but only if it "seriously affect[s] the fairness, in t e g r it y , or public reputation of judicial proceedings." Puckett, 129 S. Ct. at 1 4 2 9 (internal quotation marks and citation omitted). T h e PSR assigned one criminal history point for Salas's 2007 conviction fo r evading arrest. Salas received a sentence of "30 days deferred adjudication p r o b a t io n " for this offense. In calculating criminal history, sentences for

m is d e m e a n o r and petty offenses are counted, except as provided in § 4A1.2(c)(1) a n d (2). Only§ 4A1.2(c)(1) is applicable herein. Sentences for the thirteen o ffe n s e s listed under § 4A1.2(c)(1) and "offenses similar to them, by whatever n a m e they are known" are counted only when the sentence imposed "was a term o f probation of more than one year or a term of imprisonment of at least [30] d a y s " or when "the prior offense was similar to an instant offense." §

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Case: 09-41243 Document: 00511282259 Page: 4 Date Filed: 11/02/2010

No. 09-41243 4 A 1 .2 (c )(1 )(A ), (B). One of the offenses listed in § 4A1.2(c)(1) is resisting arrest. Assuming without deciding that Salas's 2007 evading arrest conviction is

s im ila r to the enumerated offense of resisting arrest, that prior conviction should n o t have affected the calculation of Salas's criminal history because neither of t h e conditions in § 4A1.2(c)(1)(A) or (B) is present in this case. Salas's sentence o f "30 days deferred adjudication probation" for evading arrest is less than the r e q u ir e d threshold of "a term of probation of more than one year." Also, evading o r resisting arrest is not similar to the instant offense of drug possession with in t e n t to distribute. Thus the district court clearly erred by adding one criminal h is t o r y point under this provision. Next, it is necessary to determine if this plain error affected Salas's s u b s t a n t ia l rights. Puckett, 129 S. Ct. at 1429; John, 597 F.3d at 284-85. A onep o in t reduction in Salas's criminal history calculation reduces his criminal h is t o r y category from IV to III and his advisory guidelines range from 37 - 46 m o n th s of imprisonment to 30 - 37 months of imprisonment.3 These two

s e n te n c in g ranges overlap by one month, Salas's sentence is at the very bottom o f the incorrect range and the very top of the correct range. However, when the c a l c u la t e d and correct sentencing ranges overlap, this court has "shown c o n s id e r a b le reluctance in finding a reasonable probability that the district court w o u ld have settled on a lower sentence" when the defendant's sentence falls w it h in both the correct and incorrect guidelines ranges. United States v.

C a m p o -R a m ir e z , 379 F. App'x 405, 409 (5th Cir. 2010) (unpublished). United S ta te s v. Blocker, 612 F.3d 413, 416 (5th Cir. 2010)(Sentence of 85 months using

Salas's prior convictions, which resulted in his criminal history category of III, include two evading arrest convictions and two illegal entry convictions.

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Case: 09-41243 Document: 00511282259 Page: 5 Date Filed: 11/02/2010

No. 09-41243 a guideline range of 78 to 97 months affirmed, although the correct range was 7 0 to 87 months.); United States v. Jones, 596 F.3d 273 (5 th Cir. 2010)(Sentence o f 292 months imprisonment using a guideline range of 292 to 365 months a ffir m e d . The correct guideline range was 262 to 327 months. ); United States v . Jasso, 587 F.3d 706 (5th Cir. 2009)( Sentence of 46 months using a guideline r a n g e of 46 to 57 months affirmed. m o n th s . ) The single exception seems to have occurred in United States v. Price, 516 F .3 d 285, 290 (5thCir.2008), our first case to consider the effect of overlapping r a n g e s on a defendant's ability to show a probability of a lesser sentence. In P r ic e , we vacated and remanded for resentencing, because Price's sentence fell n e a r the top of the correct range and the difference between the minimum s e n te n c e s under the two ranges was substantial--18 months. Id. at 289 n. 28. This court, however, has refused to find reversible plain error in cases in v o lv in g only a one-month overlap. In United States v. Cruz-Meza, 310 F. App'x 6 3 4 , 636-37 (5th Cir.), cert. denied, 130 S. Ct. 86 (2009), this court concluded that a one-month overlap between the correct and incorrect guidelines ranges d e m o n s t r a t e d "only a possibility of a lesser sentence but for the error, not the r e q u is it e probability" and noted that the defendant could point to nothing in the r e c o r d "to bolster his assertion that the district court would have imposed a lo w e r sentence" in the light of the proper guidelines range. Unlike the instant c a s e , however, the district court in Cruz-Meza articulated its reasons for the s e n te n c e imposed and its rejection of defense arguments for a variance, noting `" it would have been easy"' to go much higher based on the defendant's prior c o n v ic t io n s . Id. at 637-38. The correct guideline range was 41 to 51

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Case: 09-41243 Document: 00511282259 Page: 6 Date Filed: 11/02/2010

No. 09-41243 C r u z -M e z a distinguished Price as follows: C r u z -M e z a makes a plausible argument that, in light of our decision in United States v. Price, the fact that the correct and incorrect G u id e lin e ranges overlap by a single month might demonstrate a r e a s o n a b le probability that, but for the district court's m is a p p lic a tio n of the Guidelines, the district court would have im p o s e d a lower sentence. See Price, 516 F.3d 285, 289-90 & n.28 (5 t h Cir. 2008) (finding reversible plain error where incorrect G u id e lin e range and correct Guideline range overlapped by five m o n t h s and defendant's sentence was in the middle of the correct G u id e lin e range). In this case, a sentence at the bottom of the c o r r e c t range would be eighteen months, which represents a s e n t e n c e reduction of six months. Six months is somewhat less than t h e difference in minimum sentences addressed in Price and United S ta te s v. Villegas. See Price, 516 F.3d at 289-90 (eighteen-month d i f f e r e n c e ); Villegas, 404 F.3d at 364 (eleven-month difference b e tw e e n the bottom of the correct and erroneous Guideline ranges). Cruz-Meza relies on Price's observation that "[w]ith more of an o v e r la p between correct and erroneous sentencing ranges, we would fa c e a closer question of `substantial rights,'" 516 F.3d at 289 n.28, t o argue that his lesser overlap in ranges makes his an easier case t h a n Price. The overlap in Cruz-Meza's correct and erroneous G u id e lin e s sentencing ranges is less than it was in Price, but on this r e c o r d we cannot say that the bare overlap in ranges necessarily e s t a b lis h e s that Cruz-Meza's substantial rights were affected. The le s s e r overlap in the sentencing ranges at issue here (24-30 versus 1 8 -2 4 ) than in Price (110-120 versus 92-115), shows only a p o s s ib ilit y of a lesser sentence but for the error, not the requisite p r o b a b ility . C r u z -M e z a , 310 F. App'x at 637. In Campo-Ramirez, the court also determined that a one-month overlap b e tw e e n the correct and incorrect sentencing ranges did not violate the d e fe n d a n t 's substantial rights because the defendant did not show the requisite p r o b a b ilit y of a lower sentence. 379 F. App'x at 408. As in Cruz-Meza, there was

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Case: 09-41243 Document: 00511282259 Page: 7 Date Filed: 11/02/2010

No. 09-41243 n o t h in g in the record to bolster Campo-Ramirez's argument that a lower s e n te n c e was probable rather than just possible, particularly in light of the d is t r ic t court's consideration and rejection of arguments in favor of a downward v a r ia n c e . Id. at 408-09. T h e facts in this case do not require a different result. Salas, on his own b e h a lf, asked the court for "the least, minimum sentence you can give me," based o n his claims of forced participation in the drug transportation, his fear for the s a fe t y of his family due to threats that were made, and his lack of prior in v o lv e m e n t with drugs. Id. (Noting that he had always worked in the

c o n s t r u c t io n business). Thereafter, the district court implicitly rejected the G o v e r n m e n t 's request for a 41-month sentence and instead imposed a 37-month s e n te n c e , which was at the bottom of Salas's original (incorrect) guidelines range o f 37 to 46 months. Salas has the burden to persuade us that the district court w o u ld impose a lower sentence if given an opportunity to do so. Nothing in these fa c t s or in the remainder of the record of Salas's sentencing indicates that a lo w e r sentence was probable rather than just possible. Nor is there evidence t h a t the district court believed the bottom of "any range to be appropriate." J a s s o , 587 F.3d at 714 n. 11; Jones, 596 F.3d at 279. s u b s t a n t ia l rights were not affected by this error. III. Salas also argues on appeal that the court erroneously applied the S e n te n c in g Guidelines by failing to award a minor role adjustment under U .S .S .G . § 3B1.2(b) and contends that his role as a drug courier does not p r e c lu d e such an adjustment. The district court's determination of a defendant's r o le is a factual finding reviewed for clear error. United States v. Villanueva, Accordingly, Salas's

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Case: 09-41243 Document: 00511282259 Page: 8 Date Filed: 11/02/2010

No. 09-41243 4 0 8 F.3d 193, 203 (5th Cir. 2005). "A factual finding is not clearly erroneous if it is plausible in light of the record read as a whole." Id. S e c t io n 3B1.2(b) provides for a two-level reduction in a defendant's offense le v e l if he was a "minor" participant. A defendant's role is minor if he is "less c u lp a b le than most other participants," § 3B1.2, comment. (n.5), and " s u b s t a n t ia lly less culpable than the average participant." Id. comment.

(n .3 (A ) ) ; Villanueva, 408 F.3d at 203-04. Stated differently, the minor-role a d ju s tm e n t applies to defendants who are only peripherally involved in the c r im e . Villanueva, 408 F.3d at 204. S in c e his first meeting with Border Patrol agents when he agreed to waive h is Miranda rights, Salas has consistently maintained that he was forced to t r a n s p o r t the marijuana. Salas raised this issue again at rearraignment, in his P S R objections, and at sentencing, noting that he had been living and working in the United States for nine years; had never been involved with drugs before; h a d only entered the country to find work to support his pregnant wife and three c h ild r e n ; was not a member of a drug organization; did not know the people who fo r c e d him to transport the drugs; did not care about the amount of money that h e was promised to transport the drugs; and was instead concerned only about t h e safety of his family because of threats made when he came upon the s m u g g le r s at the Rio Grande River. The PSR confirms that Salas has no history o f drug offenses. None of these facts undermines the district court's factual finding that S a la s was not entitled to a minor role adjustment. As we stated in United States v . Gallegos: We have held, however, that a defendant may be a courier without b e in g either a minimal participant or a minor participant. 8

Case: 09-41243 Document: 00511282259 Page: 9 Date Filed: 11/02/2010

No. 09-41243 B u e n r o s tr o , 868 F.2d at 139. Minimal participant status is not a le g a l conclusion derived by applying the guidelines to factual d e t e r m in a t io n s . It, like "manager" status within the meaning of § 3 B 1 .1 , is itself a factual determination. That determination turns u p o n culpability, not courier status. As we said in Buenrostro, a d e fe n d a n t may be a courier without being substantially less c u lp a b le than the average participant. Culpability is a d e t e r m in a t io n requiring sensitivity to a variety of factors. U .S . v. Gallegos, 868 F.2d 711, 713 (5th Cir. 1989); see also United States v. J e n k in s , 487 F.3d 279, 282 (5th Cir. 2007) (a defendant is not entitled to a minor r o le adjustment merely because his role was limited to courier). The district court did not clearly err in failing to award a minor role a d ju s tm e n t under U.S.S.G. § 3B1.2(b). IV . For the foregoing reasons, we affirm Salas's sentence. AFFIRMED.

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