     Case: 12-20742       Document: 00512446858         Page: 1     Date Filed: 11/19/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        November 19, 2013
                                     No. 12-20742
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

TRANQUILINO SALAZAR-ESPINOZA, also known as Tranquilino Salazar, also
known as Tranquilino Salazar Espinoza, also known as Tranquelino
Espinoza-Salazar, also known as Tranquilo Salazar-Espinoza, also known as
Rodolfo Patino Gonzalez, also known as Tranquilino Espinoza,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CR-183-1


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Tranquilino Salazar-Espinoza (Salazar) appeals the 57-month sentence
imposed on his guilty plea conviction for reentering the United States illegally.
See 8 U.S.C. § 1326. He contends that the district court committed procedural
error in the calculation of his guidelines sentencing range and also that it



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-20742

imposed a substantively unreasonable sentence after declining to grant him a
downward departure or a variance.
      Salazar fails to show that the district court miscalculated his guidelines
range. See Gall v. United States, 552 U.S. 38, 51 (2007). Salazar does not
address U.S.S.G. § 4A1.1(d), on which the district court relied, and he cites no
authority for the proposition that it was improper to add criminal history points
because, in his view, he was not on supervised release when he reentered,
having been removed to Mexico before his prison term ended. Salazar was still
under a criminal justice sentence for a prior crime when he reentered, and active
supervision was unnecessary for application of the Guideline. See § 4A1.1,
comment. (n.4).
      Additionally, we reject the contention that Salazar was entitled to a
downward departure or a variance. In our caselaw, a departure is a sentence
that falls outside the initially calculated guidelines range but is authorized by
one or more provisions of the Sentencing Guidelines, while a variance is a
sentence that is not so authorized. United States v. Brantley, 537 F.3d 347, 349
(5th Cir. 2008). Because nothing indicates that the district court was of the
mistaken belief that it was not free to depart, we are without jurisdiction to
review the claim that it abused its discretion by not granting a downward
departure. See United States v. Lucas, 516 F.3d 316, 350 (5th Cir. 2008).
Nevertheless, we may review Salazar’s sentence for reasonableness. See United
States v. Nikonova, 480 F.3d 371, 375 (5th Cir. 2007), abrogation on other
grounds recognized by United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th
Cir. 2009).
      The district court’s reasons for its sentence comport with sentencing
considerations established by Congress. See 18 U.S.C. § 3553(a). Moreover,
being within the properly calculated guidelines range, Salazar’s sentence is
entitled to a presumption of reasonableness. See United States v. Alonzo, 435
F.3d 551, 554 (5th Cir. 2006). Even crediting the account that Salazar’s only

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                                  No. 12-20742

reason for reentering the United States was to help an infirm brother, the record
provides insufficient basis for us to forgo applying that presumption and to
substitute another sentence for that selected by the district court. See Gall, 552
U.S. at 52.
      AFFIRMED.




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