United States v. Salinas

62 F. App'x 89
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 31, 2003
DocketNo. 01-2297
StatusPublished

This text of 62 F. App'x 89 (United States v. Salinas) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Salinas, 62 F. App'x 89 (6th Cir. 2003).

Opinions

COLLIER, District Judge.

This appeal comes from the Eastern District of Michigan (Paul D. Borman, J.). Appellant Rigoberto Salmas appeals his sentence of a term of 100 months in prison to be followed by 10 years of supervised release, arguing the district court should have departed downward to a greater extent than it did. He requests the Court vacate his sentence and remand this case to the district court for a resentencing proceeding that will address his concerns from the original sentencing proceeding. For the following reasons, we will AFFIRM the sentence imposed by the district court.

I. BACKGROUND

On August 10, 2000, the United States charged Appellant and two codefendants with conspiracy to possess with intent to distribute and to distribute in excess of 50 grams of methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1) (JA at 10-11). Appellant pleaded guilty to the charge (JA at 35-36).

[90]*90Relying on the 2000 edition of the Sentencing Guidelines Manual, the district court found Appellant’s total offense level to be 29 and his criminal history points placed him in Criminal History Category III (JA at 69, 72). His offense level and criminal history category yielded a guideline imprisonment range of 108 to 135 months (JA at 76). However, the minimum sentence under 21 U.S.C. § 841(b)(1)(A) for this offense was twenty years imprisonment (JA at 22, 36).

The government filed a motion pursuant to USSG § 5K1.1, recommending Appellant be sentenced to a term of imprisonment not to exceed 120 months (JA at 27-28). Appellant filed a sentencing memorandum to suggest there were significant grounds for departure from the guideline range of 108 to 135 months imprisonment (JA at 23-25).1 Appellant argued the combination of four factors warranted a downward departure in his case: (1) his limited role in the conspiracy, especially compared to the leaders and sentences they received; (2) an absence of pecuniary gain; (3) the effect upon his family; and (4) Category III overrepresented his criminal history (JA at 23-25). Appellant requested a term of imprisonment no greater than 60 months (JA at 25).

On September 6, 2001, the district court sentenced Appellant to a term of imprisonment of 100 months and supervised release of 10 years (JA at 14-17). During the proceeding, the court acknowledged the government’s § 5K1.1 motion and heard Appellant’s counsel regarding his sentencing memorandum (JA at 48-52). The government responded, urging the court impose a sentence of 120 months as suggested in its motion (JA at 52-53). The court asked the government to specifically respond to Appellant’s comparison to his two coconspirators, and each side then addressed the sentences imposed upon them (78 months, 84 months) (JA at 53-54). The government stressed the difference in Appellant’s relevant criminal history (two prior felony drug convictions, triggering a provision of § 841(b)), the ease with which he contacted the drug suppliers, and that he committed this offense within two months of receiving probation in Texas (JA at 53-54). Appellant indicated the coconspirators had higher criminal history categories, but the government explained their prior convictions were of a different nature than Appellant’s (JA at 53-55). Then the court noted Appellant’s recurrent drug convictions and imposed its judgment (JA at 55).

II. STANDARD OF REVIEW

A district court has the discretion to depart downward from the sentencing guideline range where “a defendant’s criminal history category significantly over-represents the seriousness of a defendant’s criminal history or the likelihood that the defendant will commit further crimes” or where there is a mitigating factor not adequately taken into account in the Sentencing Guidelines. USSG §§ 4A1.3, 5K2.0. A decision to depart from the Sentencing Guidelines is reviewable for abuse of discretion. United States v. Schulte, 264 F.3d 656, 659 (6th Cir.2001). However, a district court’s discretionary refusal to depart downward generally is not reviewable, unless the district court mistakenly believed it did not have legal authority to depart downward. United States v. Henderson, 209 F.3d 614, 617-18 (6th Cir.2000). The district court need not explicitly state it is aware of its discretionary [91]*91authority to depart downward; the record need only make clear the court’s awareness of its discretion. United States v. Owusu, 199 F.3d 329, 349 (6th Cir.2000).

III. DISCUSSION

The record clearly indicates the district court was aware of its discretionary authority to depart downward in setting Appellant’s sentence, so we are precluded from reviewing the extent of the court’s downward departure. United States v. Nesbitt, 90 F.3d 164, 166 (6th Cir.1996). During the sentencing proceeding, the district court listened to Appellant’s comments regarding his sentencing memorandum, and the court asked both sides to address portions of Appellant’s argument. After hearing the parties, the district court referred to Appellant’s criminal history consisting of drug offenses, and it sentenced Appellant to imprisonment for 100 months.2 This sentence was 140 months below the statutory minimum for Appellant’s offense, 20 months below the sentence suggested by the government in its USSG § 5K1.1 motion, and eight months below the guideline range for Appellant’s offense level and criminal history category. The record indicates the district court was aware of its discretion to depart downward, so the extent of the downward departure is not reviewable.

As we said earlier, departures by sentencing courts are reviewable in certain situations. However, it is clear that this case is not one of them. This is not a case where the defendant is appealing the extent of an upward departure, see United States v. Schultz, 14 F.3d 1093, 1102 (6th Cir.1994) (holding that sentencing courts “must move stepwise up the ladder of criminal history categories” when making upward departures and make specific findings on the “inadequacy of any sentencing categories passed over”), or the government is appealing the extent of a downward departure. See United States v. Cooper, 302 F.3d 592, 597 (6th Cir.2002) (concluding that if a district court determines a two level downward departure in criminal history is required, then the court must explain the inadequacy of a one level departure).

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62 F. App'x 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-salinas-ca6-2003.