United States v. Juan Salazar

Case: 16-40383 Document: 00514123903 Page: 1 Date Filed: 08/21/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
No. 16-40383 FILED
Summary Calendar August 21, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,

Plaintiff-Appellee

JUAN ALBERTO SALAZAR,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:15-CR-550-1

Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
Juan Alberto Salazar appeals the 51-month within-guidelines sentence
he received after he pleaded guilty to possession of a firearm by an illegal alien,
in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2). He argues that his
sentence is unreasonable. Because Salazar did not preserve the procedural
error he now raises and did not object to the substantive reasonableness of his
sentence after it was imposed, we review for plain error. See Puckett v. United

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-40383 Document: 00514123903 Page: 2 Date Filed: 08/21/2017

No. 16-40383

States, 556 U.S. 129, 135 (2009); Gall v. United States, 552 U.S. 38, 49-51
(2007); United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009); United States
v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
Salazar’s assertion that his sentence is procedurally unreasonable
because the district court misapprehended his objection to the U.S.S.G.
§ 2K2.1(b)(4)(A) enhancement is disingenuous, as he never asked the district
court to vary from the calculated guidelines range, and the record does not
show that the district court erroneously believed it could not depart
downwardly. See United States v. Hernandez, 457 F.3d 416, 424 & n.5 (5th
Cir. 2006). Further, the district court considered all of the evidence and
arguments before it and had a reasoned basis for exercising its decisionmaking
authority. See Rita v. United States, 551 U.S. 338, 356 (2007); United States
v. Diaz Sanchez, 714 F.3d 289, 293-95 (5th Cir. 2013). Salazar fails to show
that his sentence was substantively unreasonable as he has not rebutted the
presumption we accord his within-guidelines sentence. See United States v.
Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009). He, therefore, fails to
show plain error with respect to the procedural or substantive reasonableness
of his sentence. See Puckett, 536 U.S. at 135.
We review for plain error Salazar’s arguments that § 922(g)(5)(A)
violates the Second Amendment and the Fifth Amendment’s Due Process
Clause with respect to his equal protection rights, as he did not raise them in
the district court. See United States v. Ebron, 683 F.3d 105, 155 (5th Cir. 2012).
Salazar fails to show plain error. See Puckett, 536 U.S. at 135; United States
v. Portillo-Munoz, 643 F.3d 437, 440 (5th Cir. 2011) (Second Amendment);
United States v. Williams, 365 F.3d 399, 407-08 (5th Cir. 2004) (due process);
United States v. Mirza, 454 F. App’x at 249, 258-59 (5th Cir. 2011) (equal
protection).
AFFIRMED.