United States v. Salinas-Cadena

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 1, 2018
• Docket: 17-2169
• Status: Unpublished

Opinion

FILED United States Court of Appeals Tenth Circuit

UNITED STATES COURT OF APPEALS August 1, 2018 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. Nos. 17-2169 & 17-2170 (D.C. Nos. 2:17-CR-01614-KG-1 EDGAR SALINAS-CADENA, and 2:16-CR-02306-KG-1) (D. New Mexico) Defendant - Appellant.

ORDER AND JUDGMENT *

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I. Introduction

Appellant Edgar Salinas-Cadena pleaded guilty to one count of illegally

reentering the United States after removal and also admitted to a violation of his

supervised release. The district court sentenced him to twenty-four months’

imprisonment on the illegal reentry charge. Salinas-Cadena appeals this sentence,

arguing it is substantively unreasonable. Exercising jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm Salinas-Cadena’s sentence.

II. Background

In 2017, Salinas-Cadena was charged in a one-count information with

illegally reentering the United States after removal, in violation of 8 U.S.C.

§ 1326(a), (b). He pleaded guilty to the charge and a Presentence Investigation

Report (“PSR”) was prepared. The PSR calculated Salinas-Cadena’s base level as

eight by applying USSG § 2L1.2. It added four levels pursuant to USSG

§ 2L1.2(b)(a)(D) and four additional levels because Salinas-Cadena had

previously been sentenced on an illegal reentry charge. The PSR subtracted three

levels for acceptance of responsibility pursuant to USSG § 3E1.1(a) & (b),

resulting in a total offense level of thirteen. Salinas-Cadena’s criminal history

included multiple prior convictions, resulting in a criminal history score of nine

which corresponded to a criminal history category of IV. An offense level of

thirteen combined with a criminal history category of IV resulted in an advisory

guidelines range of twenty-four to thirty months’ imprisonment.

-2- Salinas-Cadena did not object to any part of the PSR but, prior to

sentencing, he filed a one-page document titled: Notice of Grounds for Variance

Request. The request identified the following bases for a variant sentence: “1.

Nature and circumstances of the offense; and 2. Need for sentence imposed. 3.

Disparty [sic] among sentences.” The government filed a written response, noting

Salinas-Cadena’s illegal reentry into the United States was also a violation of the

conditions of a term of supervised release imposed in 2016. As to the nature and

circumstances of the offense, the government asserted Salinas-Cadena has

illegally reentered the United States four times. It argued his prior removals and

violations of his conditions of supervised release showed “a complete disregard

for the laws of the United States.”

At the beginning of the sentencing hearing, Salinas-Cadena admitted that

his reentry into the United States was a violation of the terms of supervised

release imposed in a prior matter. He requested a below-guidelines sentence for

both convictions, arguing even a twenty-four-month sentence would be

significantly longer than any sentence imposed on him in the past. Addressing

the court, Salinas-Cadena stated he returned to the United States for financial

reasons and to reunite with his wife who was pregnant and ill. The district court

imposed a twenty-four-month sentence for the illegal reentry charge, a sentence at

the bottom of the advisory guidelines range. The court also imposed an eight-

-3- month sentence for the supervised release violation, with half of the sentence to

run consecutive and half to run concurrent.

Salinas-Cadena appeals the twenty-four-month sentence imposed for the

illegal reentry conviction, arguing it is substantively unreasonable.

III. Discussion

This court reviews the substantive reasonableness of Salinas-Cadena’s

sentence under the abuse-of-discretion standard. United States v. Steele, 603 F.3d

803, 809 (10th Cir. 2010). “Substantive reasonableness involves whether the

length of the sentence is reasonable given all the circumstances of the case in

light of the factors set forth in 18 U.S.C. § 3553(a).” United States v. Conlan,

500 F.3d 1167, 1169 (10th Cir. 2007). As to substantive reasonableness, a

sentence within a correctly calculated advisory guidelines range is presumptively

reasonable. United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). “The

defendant may rebut this presumption by demonstrating that the sentence is

unreasonable in light of the other sentencing factors laid out in § 3553(a).” Id.

Salinas-Cadena argues the district court failed to give sufficient weight to

his motivation for illegally reentering the United States. He asserts his sentence

is substantively unreasonable because the district court placed undue emphasis on

deterrence and discounted the nature and circumstances of the offense. We have

read the entirety of the record, including the transcript of the sentencing hearing,

and conclude it does not support Salinas-Cadena’s argument.

-4- The record confirms that the district court specifically considered Salinas-

Cadena’s explanation for his illegal reentry and balanced it against the other

factors set out in 18 U.S.C. § 3553(a). Before imposing sentence, the district

court referenced Salinas-Cadena’s prior convictions, including an illegal reentry

conviction that occurred just nine months prior. The court then stated: “I did

review the Sentencing Guidelines as they apply specifically to you as well as the

3553 factors, considering specifically your wife’s health and that drawing you

back to the United States to support her and to address her medical needs.”

Salinas-Cadena has failed to identify anything in the record undermining

the district court’s statement that it fully considered his motivation for

committing the illegal reentry crime. Thus, there is no support for his assertion

that his sentence is substantively unreasonable because the court “unduly”

discounted the nature and circumstances of the offense. Nor does the record

reveal any abuse of discretion in the district court’s decision that Salinas-

Cadena’s history of lawlessness weighed against a downward variance. See

United States v. Smart, 518 F.3d 800, 808 (10th Cir. 2008) (holding this court

must give substantial deference to the district court’s weighing of the § 3553(a)

factors).

-5- IV. Conclusion

Salinas-Cadena’s sentence is affirmed.

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge

-6-