United States v. Fernando Salgado

Filing

PER CURIAM OPINION FILED - THE COURT: Raymond W. Gruender, Myron H. Bright and Jane Kelly (UNPUBLISHED), CONCUR BY: Raymond W. Gruender [4428536] [15-2793]

United States Court of Appeals
For the Eighth Circuit
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No. 15-2793
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Fernando Salgado
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: April 15, 2016
Filed: July 21, 2016
[Unpublished]
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Before GRUENDER, BRIGHT, and KELLY, Circuit Judges.
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PER CURIAM.
A jury convicted appellant-defendant Fernando Salgado (Salgado) of assault
by striking, beating, or wounding in violation of 18 U.S.C. § 113(a)(4), a crime

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committed during Salgado’s incarceration for an unrelated crime. The district court1
sentenced Salgado to a 12-month term of imprisonment to run consecutive to his
sentence of 210-months’ imprisonment for the unrelated crime. Salgado appeals,
arguing the sentence is substantively unreasonable because it is greater than necessary
to comply with the purposes of 18 U.S.C. § 3553(a). We affirm.
I
On March 29, 2012, three inmates, including Salgado, attacked a fourth inmate
in a recreation-yard cage in the Special Housing Unit at the Federal Correctional
Complex in Forrest City, Arkansas. Salgado allegedly served 33 months in solitary
confinement as a result of the assault. The government charged Salgado and two
other inmates in a one-count indictment with assault resulting in serious bodily injury,
pursuant to 18 U.S.C. § 113(a)(6).
Salgado and a codefendant proceeded to a jury trial. The jury found Salgado
guilty of assault by striking, beating, or wounding, in violation of 18 U.S.C.
§ 113(a)(4)–a lesser-included offense of the charged crime.
The district court held Salgado’s sentencing hearing on July 29, 2015. The
district court determined Salgado had a criminal history category of VI and an
advisory guideline range of 21 to 27 months’ imprisonment. But Salgado’s
conviction carried a statutory maximum penalty of 12-months’ imprisonment.
Neither party moved for a departure. Salgado requested the sentence run concurrent
to Salgado’s sentence for the unrelated crime in light of the 33 months Salgado
allegedly spent in solitary confinement. The district court considered and denied
Salgado’s request. The judge noted Salgado’s codefendants received consecutive

1

The Honorable Kristine G. Baker, United States District Judge for the Eastern
District of Arkansas.
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sentences and the conduct amongst the codefendants was not appreciably different.
The district court sentenced Salgado to 12-months’ imprisonment to run
consecutively to Salgado’s sentence for the unrelated crime. Salgado timely
appealed.
II
“We apply an abuse-of-discretion standard to review the substantive
reasonableness of a sentence.” United States v. Garcia, 774 F.3d 472, 476 (8th Cir.
2014) (per curiam) (quoting United States v. Sandoval-Sianuqui, 632 F.3d 438, 444
(8th Cir. 2011)). Salgado argues his sentence is substantively unreasonable because
it is greater than necessary to comply with the purposes of section 3553(a) in light of
the time Salgado spent in solitary confinement. We disagree.
A district court’s sentence is substantively unreasonable “when it fails to
consider a relevant factor, gives significant weight to an irrelevant or improper factor,
or considers only appropriate factors but nevertheless commits a clear error of
judgment by arriving at a sentence that lies outside the limited range of choice
dictated by the facts of the case.” United States v. French, 719 F.3d 1002, 1009 (8th
Cir. 2013) (quoting United States v. Jones, 509 F.3d 911, 913 (8th Cir. 2007)). None
of these circumstances is present here. At sentencing, the district court expressly
considered all of the section 3553(a) factors, the attorneys’ arguments, and the
advisory Guidelines. Further, the district court considered Salgado’s sentence in light
of the sentences received by Salgado’s codefendants and determined a consecutive
sentence avoided unwarranted sentencing disparities between codefendants whose
conduct was not appreciably different. See 18 U.S.C. § 3553(a)(6) (noting the need
to avoid unwarranted disparities among defendants).

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Salgado argues the time he allegedly spent in solitary confinement should be
a mitigating factor warranting a consecutive sentence.2 Even if the record contained
sufficient evidence substantiating the time Salgado allegedly spent in solitary
confinement, “a sentencing court has wide latitude to weigh the section 3553(a)
factors in each case and assign some factors greater weight than others.” United
States v. Roberts, 747 F.3d 990, 992 (8th Cir. 2014) (quoting United States v.
Lozoya, 623 F.3d 624, 627 (8th Cir. 2010)). Here the district court considered
Salgado’s request relating to solitary confinement and to run his sentence
concurrently, but gave more weight to the sentences imposed on Salgado’s
codefendants. Given this explanation, the district court adequately considered the
section 3553(a) factors and Salgado’s sentence is substantively reasonable.
For the foregoing reasons, we affirm the district court.
GRUENDER, Circuit Judge, concurring.
I concur in the judgment and the opinion of the court except for footnote 2,
which I consider unnecessary to resolve this case.
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2

Solitary confinement can be detrimental to the mental health of inmates and
should be used sparingly, if at all. See, e.g., Elizabeth Bennion, Banning the Bing:
Why Extreme Solitary Confinement Is Cruel and Far Too Usual Punishment, 90 Ind.
L.J. 741, 753-63 (2015) (discussing scientific studies on the effects of isolation on the
brain, body, and behavior).
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