USA v. Jose Saldivar-Sanchez


UNPUBLISHED OPINION FILED. [10-50138 Affirmed] Judge: EGJ , Judge: EMG , Judge: CES. Mandate pull date is 12/09/2010 for Appellant Jose Saldivar-Sanchez [10-50138]

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USA v. Jose Saldivar-Sanchez Case: 10-50138 Document: 00511298815 Page: 1 Date Filed: 11/18/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-50138 S u m m a r y Calendar November 18, 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 SALDIVAR-SANCHEZ, D e fe n d a n t -A p p e lla n t A p p e a ls from the United States District Court fo r the Western District of Texas U S D C No. 1:09-CR-668-1 B e fo r e JOLLY, GARZA and STEWART, Circuit Judges. P E R CURIAM:* J o s e Saldivar-Sanchez (Saldivar) appeals the sentence of 24 months of im p r is o n m e n t and three years of supervised release imposed on revocation of the t e r m of supervised release that he was serving in connection with his conviction fo r possession of cocaine. We affirm. S a ld iv a r maintains that his revocation sentence must be vacated as being e it h e r unreasonable or plainly unreasonable. He contends that the sentence was 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 10-50138 Document: 00511298815 Page: 2 Date Filed: 11/18/2010 No. 10-50138 lo n g e r than necessary to satisfy the requirements of 18 U.S.C 3553(a). Citing 3553(a)(1), Saldivar contends that the district court failed to give adequate c o n s id e r a t io n to the nature and circumstances of his supervised release v io la t io n s . More specifically, he suggests that the district court did not consider t h e fact that the offense that served as one of his violations--illegal reentry into t h e United States--itself drew a 57-month prison term on the same day that his r e v o c a t io n sentence was imposed. He does not contend that the district court fa ile d to consider any other 3553(a) factors or otherwise erred. After United States v. Booker, 543 U.S. 220 (2005), it is unclear whether t h e validity of a revocation sentence turns on whether it is held to be reasonable o r to be plainly unreasonable. See United States v. Davis, 602 F.3d 643, 647 n.5 (5 t h Cir. 2010). In Saldivar's case, however, review is for plain error only, since S a ld iv a r did not present to the district court the objection that he now makes to h is sentence. See United States v. Jones, 484 F.3d 783, 792 (5th Cir. 2007). To m e e t this standard of review, Saldivar must first show a forfeited error. See P u c k e tt v. United States, 129 S. Ct. 1423, 1429 (2009). He must then show that t h e error is clear or obvious and that it affects his substantial rights. See id. If S a ld iv a r makes all of these showings, we have the discretion to correct the error if the error seriously affects the fairness, integrity, or public reputation of ju d ic ia l proceedings. See id. O n revocation of supervised release, a district court may impose any s e n te n c e that falls within the statutory maximum term, but must consider the S e n te n c in g Guidelines' policy statements, see U.S.S.G. Ch.7, Pt.B, and the f a c t o r s enumerated in 3553(a) before it does so. Davis, 602 F.3d at 646. Saldivar does not dispute that his sentence was below the statutory maximum o f three years imposable on the revocation of his supervised release. Instead, he c o n t e n d s that his sentence deviated too far above the policy statements range of fo u r to ten months. We reject that contention. As we have previously observed, w e have routinely affirmed revocation sentences above the advisory policy range 2 Case: 10-50138 Document: 00511298815 Page: 3 Date Filed: 11/18/2010 No. 10-50138 b u t within the statutory maximum. United States v. Whitelaw, 580 F.3d 256, 2 6 5 (5th Cir. 2009). T h e district court was fully aware that it had also imposed a separate, 57m on th sentence in connection with Saldivar's illegal reentry offense. The district c o u r t expressed its concern about Saldivar's "history of drugs" and convictions fo r firearm offenses. Clearly, in the district court's view the nature and c ir c u m s t a n c e s of the supervised release violation, which involved violent and r e c id iv is t behavior, required a harsher sentence than was advised by the g u id e lin e s policy statements. Saldivar has not shown that the district court c o m m it t e d any error, much less error that is plain. See Jones, 484 F.3d at 792. Because Saldivar has not satisfied even the first prong of plain error review, the d is t r ic t court's judgment must stand. See Puckett, 129 S. Ct. at 1429. A F F IR M E D . 3

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