USA v. Artemio Salvador-Daniel

Filing 920101217

Opinion

Case: 10-50266 Document: 00511323736 Page: 1 Date Filed: 12/16/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-50266 S u m m a r y Calendar December 16, 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. A R T E M I O SALVADOR-DANIEL, also known as Daniel Salgado-Vences, 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. 1:09-CR-650-1

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* A rtem io Salvador-Daniel appeals the 21-month sentence imposed following h is guilty plea conviction for illegal reentry following deportation. He argues t h a t his within-guidelines sentence is greater than necessary to satisfy the s e n te n c in g goals of 18 U.S.C. § 3553(a), because it overstates the seriousness of h is criminal history and fails to provide just punishment for the offense in light o f his history and characteristics, including his motive for reentering the c o u n t r y . He also contends that the sentence is greater than necessary because
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50266 Document: 00511323736 Page: 2 Date Filed: 12/16/2010 No. 10-50266 t h e illegal reentry guidelines double counted his criminal history by using a p r io r conviction both to enhance his offense level and to calculate his criminal h is t o r y category. B e c a u s e Salvador-Daniel did not object to his sentence in the district court, r e v ie w is for plain error only. See United States v. Peltier, 505 F.3d 389, 391-92 (5 t h Cir. 2007). I n United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 1 3 0 S. Ct. 378 (2009), we held that there was no impermissible double counting in the guidelines calculations that rendered the sentence unreasonable. See also U .S .S .G . § 2L1.2, comment. (n.6). Further, Salvador-Daniel's disagreement with t h e propriety of the sentence imposed and with the district court's weighing of t h e mitigating factors he presented in support of a lesser sentence does not s u ffic e to rebut the presumption of reasonableness that attaches to his withing u id e lin e s sentence. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5 t h Cir.), cert. denied, 129 S.Ct. 624 (2008); United States v. Rodriguez, 523 F.3d 5 1 9 , 526 (5th Cir.), cert. denied, 129 S.Ct. 624 (2008); United States v. Alonzo, 4 3 5 F.3d 551, 554-55 (5th Cir. 2006). Accordingly, the judgment of the district c o u r t is AFFIRMED.

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