United States v. Roberto Salas-Argueta

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 2, 2007
No. 07-11755 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 04-00233-CR-T-24-EAJ

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERTO SALAS-ARGUETA,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(October 2, 2007)

Before BIRCH, DUBINA and PRYOR, Circuit Judges.

PER CURIAM:

Appellant Roberto Salas-Argueta (“Salas-Argueta”) appeals his ten-month
sentence imposed pursuant to 18 U.S.C. § 3583(e) for violating the terms of his

supervised release. Salas-Argueta argues that his sentence was (1) procedurally

unreasonable because the district court impermissibly relied on its finding that he

had received a “break” in his sentence on the underlying charge, and (2) otherwise

substantively unreasonable.

We review a sentence imposed upon revocation of supervised release for

reasonableness in light of the factors set forth in 18 U.S.C. § 3553(a). United

States v. Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006). We review only the final

sentence, rather than individual decisions made during the sentencing process.

United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005). “Review for

reasonableness is deferential.” United States v. Talley, 431 F.3d 784, 788 (11th

Cir. 2005). However, a sentence may be procedurally unreasonable, regardless of

length, if the district court considered an impermissible factor in determining the

sentence. United States v. Williams, 456 F.3d 1353, 1361 (11th Cir. 2006).

“Whether a factor is impermissible is a question of law that we will review de

novo.” Id. The party challenging the sentence bears the burden of proving that the

sentence is unreasonable or that the district court considered an impermissible

factor. Id.

Where a defendant does not clearly state the grounds for an objection before

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the district court, review on appeal is limited to a plain error standard. United

States v. Zinn, 321 F.3d 1084, 1087 (11th Cir. 2003). Under plain error review, we

only may reverse if (1) there was error, (2) that was plain, (3) affected the party’s

substantial rights, and (4) “seriously affected the fairness of the judicial

proceedings.” United States v. Jernigan, 341 F.3d 1273, 1289 (11th Cir. 2003)

(quoting United States v. Gresham, 325 F.3d 1262, 1265 (11th Cir. 2003)). An

error is plain “if it is obvious or clear under current law.” United States v.

Candelario, 240 F.3d 1300, 1309 (11th Cir. 2001) (quoting United States v. Olano,

507 U.S. 725, 734, 113 S. Ct. 1770, 1777 (1993).

Under 18 U.S.C. § 3583(e), the district court may revoke a term of

supervised release and impose a prison sentence for all or part of the remaining

supervised release period. See 18 U.S.C. § 3583(e)(3). An advisory guidelines

range for a term of imprisonment to be imposed on revocation of supervised

release is found at U.S.S.G. § 7B1.4.

As noted above, a sentence may be procedurally unreasonable, regardless of

length, if the district court considered an impermissible factor in determining the

sentence. Williams, 456 F.3d at 1361. Salas-Argueta has not provided, and

research has not revealed, any case law discussing whether a district court’s prior

leniency, or application of a role reduction, are permissible factors to be considered

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after revoking supervised release and in imposing a new sentence.1 However, in

the sentencing context, due process protects a defendant’s right not to be sentenced

based on an invalid premise or inaccurate information. United States v. Satterfield,

743 F.2d 827, 840 (11th Cir. 1984). “The degree of protection required is only that

which is necessary to ensure that the district court is sufficiently informed to

enable it to exercise its sentencing discretion in an enlightened manner.” Id.

Where a legal decision is made at the trial level, and is not challenged on appeal,

the law of the case doctrine binds a trial or appellate court to follow that decision.

United States v. Escobar-Urrego, 110 F.3d 1556, 1560 (11th Cir. 1997).

Recently the Supreme Court held that, in reviewing sentences for substantive

reasonableness under 18 U.S.C. § 3553(a), a federal appellate court may apply a

presumption of reasonableness to a district court sentence imposed within the

guideline range. Rita v. United States, 551 U.S. ___, 127 S. Ct. 2456, 2463 (2007).

Although we have declined to adopt such a presumption, we have recognized that

the rationale in Rita “calls into question our reasons for not affording a

presumption of reasonableness.” See United States v. Campbell, 491 F.3d 1306,

1
Although Application Note 4 to U.S.S.G. § 7B1.4 advises that an upward departure may
be warranted in a sentence for revocation of supervised release where the original sentence was
below the guidelines range because of either a downward departure or a charge reduction, it does
not address the situation where, as here, both the underlying sentence and the sentence on
revocation of supervised release are within their respective guidelines ranges.

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1314 n. 8 (11th Cir. 2007). In any event, a within-range sentence, even if not

reasonable per se, may ordinarily be expected to be reasonable. Talley, 431 F.3d at

786-88.

A sentencing court is charged with imposing a sentence that is “sufficient,

but not greater than necessary” to reflect the seriousness of the offense, afford

deterrence, protect the public from further crimes of the defendant, and provide the

defendant with educational or vocational training, medical care or other treatment.

18 U.S.C. § 3553(a)(2). Furthermore, under § 3553(a), a court should consider,

inter alia, (1) the nature and circumstances of the offense and the history and

characteristics of the defendant, (2) the need for the sentence imposed to reflect the

seriousness of the offense, deter criminal conduct, and protect the public from

further crimes of the defendant, (3) the kinds of sentences available, and (4) the

sentencing guidelines. 18 U.S.C § 3553(a).

The district court does not need to explicitly consider every factor from

§ 3553(a) on the record; some indication in the record that the court adequately and

properly considered appropriate factors in conjunction with the sentence will be

sufficient. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). “The

sentencing judge should set forth enough to satisfy the appellate court that he has

considered the parties’ arguments and has a reasoned basis for exercising his own

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legal decision making authority.” Rita, 551 U.S. at ___, 127 S. Ct. at 2468.

In light of the lack of published case law regarding whether it is permissible

for a sentencing court to consider a prior role reduction or a prior low-end sentence

in determining an appropriate sentence for revocation of supervised release, we

conclude that the district court did not plainly err in taking these factors into

consideration in fashioning Salas-Argueta’s sentence. Therefore, we hold that

Salas-Argueta’s sentence was procedurally reasonable. Salas-Argueta had

repeatedly illegally re-entered the United States and the district court needed to

impose a sentence that would provide adequate deterrence. Furthermore, because

the sentence was within the guidelines range, we hold that it was also substantively

reasonable.

For the above-stated reasons we affirm Salas-Argueta’s sentence.

AFFIRMED.