Case: 16-40506 Document: 00514065288 Page: 1 Date Filed: 07/10/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-40506
Fifth Circuit
FILED
Summary Calendar July 10, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
CARLA FABIOLA SALINAS-VARGAS,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:15-CR-1020-1
Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Carla Fabiola Salinas-Vargas was convicted of being unlawfully found in
the United States subsequent to a conviction for an aggravated felony, in
violation of 8 U.S.C. § 1326(a), (b)(2). She was sentenced, within the
Sentencing Guidelines range, to 70-months’ imprisonment, with no term of
supervised release. On appeal, Salinas challenges her sentence as
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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No. 16-40506
procedurally unreasonable, asserting the district court believed that the
Guidelines were mandatory and that it lacked discretion to deviate from them.
As Salinas concedes, because she did not raise these issues in district
court, review is only for plain error. E.g., United States v. Broussard, 669 F.3d
537, 546 (5th Cir. 2012). Under that standard, Salinas must show a forfeited
plain (clear or obvious) error that affected her substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). If she does so, we have the discretion
to correct the reversible plain error, but should do so only if it “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings”. Id.
Although treating the Guidelines as mandatory amounts to a significant
procedural error, Gall v. United States, 552 U.S. 38, 46, 51 (2007), the record
as a whole does not show the court believed it lacked the discretion to deviate
from the Guidelines range. At sentencing, the court considered Salinas’
request for a downward variance before concluding that a sentence at the low
end of the Guidelines range was appropriate, based on her extensive criminal
history and the recency of her prior convictions. By considering her request for
a downward variance, the court acknowledged it could impose a sentence below
the Guidelines range; nonetheless, the court denied the request, stating: “the
Court will sentence you to the low range of -- of the -- of the guidelines”. The
court then clarified that a 70-month sentence was the “least [it] can possibly
give [defendant] under the guidelines”.
Contrary to Salinas’ assertions, the court’s statements do not show it
believed the Guidelines were mandatory or that it lacked the discretion to
deviate from them. Rather, the court decided to give a within-Guidelines
sentence, then imposed a sentence on the low end of the advisory Guidelines
range after considering Salinas’ criminal history. Accordingly, Salinas has not
shown the court committed a clear or obvious procedural error in imposing her
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No. 16-40506
sentence. See Gall, 552 U.S. at 51; see also United States v. Solis, 583 F. App’x
404, 405 (5th Cir. 2014).
AFFIRMED.
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