USA v. Johnny Salinas

Filing

UNPUBLISHED OPINION FILED. [10-50089 Affirmed] Judge: EGJ , Judge: EMG , Judge: CES. Mandate pull date is 11/23/2010 for Appellant Johnny Jonathan Salinas [10-50089]

USA v. Johnny Salinas se: 10-50089 Ca

Document: 00511282213 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
N o . 10-50089 S u m m a r y Calendar November 2, 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 H N N Y JONATHAN SALINAS, 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 Western District of Texas U S D C No. 2:09-CR-665-1

B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* J o h n n y Jonathan Salinas pleaded guilty to illegally reentering the United S t a te s following deportation and was sentenced to 27 months of imprisonment. S e e 8 U.S.C. § 1326. Salinas contends that the district court imposed a sentence g r e a t e r than necessary in light of the sentencing goals set forth in 18 U.S.C. § 3553(a) and the sentence is, therefore, substantively unreasonable. Salinas m a in t a in s that, in setting a sentence, the district court failed to adequately a c c o u n t for his personal history and characteristics, such as the fact that he had
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50089 Document: 00511282213 Page: 2 Date Filed: 11/02/2010 No. 10-50089 r e s id e d in the United States since age two; speaks, reads, and writes English; c o n s id e r s the United States to be his home; and has family in the United States. Salinas additionally argues that the district court failed to recognize that he r e e n te r e d the United States to rejoin his family who has since moved to Mexico, a n d that he required less deterrence than other offenders because he had p r e v io u s ly only served short sentences in prison. Salinas additionally argued t h a t the sentence imposed failed to provide him with educational or vocational t r a in in g , medical care, or other correctional treatment. S a lin a s argues that the lack of an empirical basis for § 2L1.2 precludes the a p p e lla te presumption of reasonableness, but he acknowledges that the a r g u m e n t is foreclosed by United States v. Duarte, 569 F.3d 528, 529-31 (5th C ir .), cert. denied, 130 S.Ct. 378 (2009). T h e record reflects that the district court considered Salinas's arguments a n d the § 3553(a) goals in setting a sentence and determined that the sentence o f 27 months of imprisonment best served those goals. See Rita v. United States, 5 5 1 U.S. 338, 347, 356 (2007). Salinas advances no persuasive reason for this c o u r t to question the application of the presumption of reasonableness or to d is t u r b the district court's choice of sentence. See Gall v. United States, 552 U.S. 4 6 , 51 (2007) (stating that "the fact that the appellate court might reasonably [c o n c lu d e ] that a different sentence [is] appropriate is insufficient to justify r e v e r s a l of the district court"). S a lin a s argues that the district court lacked authority to impose his s e n te n c e to run consecutively to a not-yet-imposed state court sentence, but a c k n o w le d g e s that this issue is foreclosed by United States v. Brown, 920 F.2d 1 2 1 2 (5th Cir. 1991). A F F IR M E D .

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