     Case: 11-60683     Document: 00511921849         Page: 1     Date Filed: 07/16/2012




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

                                                                            FILED
                                                                            July 16, 2012
                                     No. 11-60683
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ANDREO SALGADO-MARIN,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:11-CR-30-1


Before DAVIS, DeMOSS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Andreo Salgado-Marin (Salgado) appeals his bottom-of-the-guidelines
range sentence of imprisonment of 57 months imposed following his guilty plea
conviction for reentry by a deported alien following a felony conviction. Salgado
argues that his sentence was substantively unreasonable because he returned
to the United States to obtain work to support his family. Pointing out that he
unequivocally advised the district court that he would not again return to the
United States, he contends that the punishment imposed was unnecessary to

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-60683

deter him from engaging in further criminal conduct, to protect the public, to
provide just punishment or to promote respect for the law. Salgado argues that
an analysis of the 18 U.S.C. § 3553 factors demonstrate that his sentence was
unreasonable and that the case should be remanded for resentencing.
      Salgado did not object to the reasonableness of the sentence in the district
court. Therefore, review is for plain error. See United States v. Peltier, 505 F.3d
389, 391-92 (5th Cir. 2007). To prevail under that standard, Salgado must show
an error that is clear or obvious and that affects his substantial rights. See
Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes that showing,
this court has the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of the judicial proceedings. Id.
      A sentence imposed within a properly calculated guidelines range is
entitled to a presumption of reasonableness.            United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). “The presumption is rebutted
only upon a showing that the sentence does not account for a factor that should
receive significant weight, it gives significant weight to an irrelevant or improper
factor, or it represents a clear error of judgment in balancing sentencing factors.”
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      The record reflects that the district court considered the arguments made
by Salgado and responded to them by requesting that he be placed in a medical
facility where his diabetes could be treated and by granting his counsel’s request
that Salgado receive credit for time served in federal custody. In adopting the
recommendation in the presentence report that Salgado’s offense level be
reduced by three levels for acceptance of responsibility, the district court
recognized Salgado’s cooperation with the Government. The district court
considered counsel’s plea for the imposition of a lesser sentence to hasten
Salgado’s deportation, but expressly rejected the request because it determined
that Salgado must suffer some penal circumstances for his wrongdoing. After
citing the § 3553(a) factors that it had considered, the district court determined

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                                 No. 11-60683

that the factors did not present any reasons to sentence Salgado outside of the
guidelines range.
      Salgado has not demonstrated that the district court failed to give the
proper weight to any particular § 3553(a) factor or that his sentence “represents
a clear error of judgment in balancing sentencing factors.” Cooks, 589 F.3d at
186. Neither his alleged benign motive for returning to the United States nor
his history and characteristics warranted a sentence lower than the guidelines
sentence that he received. See Rita v. United States, 551 U.S. 338, 360 (2007);
United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008).
      Salgado has not rebutted the presumption of reasonableness that attaches
to his within-guidelines sentence and, thus, he has not demonstrated that his
sentence was substantively unreasonable. See Gall, 552 U.S. at 51, Ruiz, 621
F.3d at 398. Accordingly, he has not shown any error, plain or otherwise. See
Puckett, 556 U.S. at 135. The sentence is AFFIRMED.




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