     Case: 10-20408 Document: 00511389401 Page: 1 Date Filed: 02/22/2011




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

                                                 FILED
                                                                          February 22, 2011
                                     No. 10-20408
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE SALAZAR-MARTINEZ, also known as Jose Salazar, also known as Jose
Daniel Salazar, also known as Jose Daniel Salazar Martinez,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:10-CR-19-1


Before GARWOOD, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Jose Salazar-Martinez (Salazar) appeals the 56-month sentence imposed
for illegal reentry after deportation following an aggravated felony conviction.
8 U.S.C. § 1326(a), (b)(2).        Salazar does not argue that the district court
committed any procedural error, and we need only review the substantive
reasonableness of the sentence. See United States v. Brantley, 537 F.3d 347, 349
(5th Cir. 2008). “Regardless of whether the sentence imposed is inside or outside


       *
        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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-20408 Document: 00511389401 Page: 2 Date Filed: 02/22/2011

                                        No. 10-20408

the Guidelines range, the appellate court must review the sentence under an
abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51 (2007). “If
the sentence is within the Guidelines range, the appellate court may, but is not
required to, apply a presumption of reasonableness.” Id. (citing Rita v. United
States, 551 U.S. ____, 127 S.Ct. 2456 (2007)).1
       Salazar does not dispute that his prior arson conviction supported the
application of the 16-level crime of violence enhancement in § 2L1.2(b)(1)(A)(ii)
in his case, but he argues that the resulting guideline range over-represented
the seriousness of his prior offense and his future dangerousness. He notes that




       1
         We note the possibility that the sentence might not be considered as one “within the
Guidelines range.” The PSR calculated the guideline range as 57 to 71 months – a calculation
that is unchallenged and which we determine to be correct – and at sentencing the district
court stated that “[t]he presentence report and all addendums are hereby adopted by this
Court.” After argument by defense counsel and some remarks by the court, Government
counsel argued, concluding with the statement that: “I recommend a sentence at the low end
of the advisory guidelines with one month credit for the time the defendant spent in ICE
custody.” Shortly thereafter the court pronounced sentence, stating in relevant part: “I’ve
considered the guidelines and find that – I find that a sentence within the guidelines takes
into account the purposes of 18 United States Code, Section 3553(a). I will sentence at the low
end of the guidelines plus one month that he was in custody or one month credit. The
defendant is hereby committed to the custody of the Bureau of the Prisons to be imprisoned
for a term of 56 months.” The written judgment of conviction states: “The defendant is hereby
committed to the custody of the United States Bureau of Prisons to be imprisoned for a total
term of 56 months. This term consists of FIFTY-SIX (56) MONTHS as to Count 1. This
sentence is not a departure from the Sentencing Guidelines and provides for a 1-month credit
for time served in the custody of Immigration and Customs Enforcement (ICE) that would
otherwise not be credited by the Bureau of Prisons.”
        There has been no objection, here or below, to the one month “credit” for pretrial ICE
custody or to the sentence being 56 instead of 57 months. We assume, arguendo only, that the
district court was not authorized to give credit for the ICE custody as that was solely up to the
Bureau of Prisons, see Leal v. Tombone, 341 F.3d 427, 428 (5th Cir. 2003); United States v.
Aguirre-Lopez, 299 Fed. App’x 395, 2008 WL 4888533 (5th Cir. 2008), and that the 56 month
sentence was not within the guidelines range solely because it was one month below the
bottom of the applicable 57 to 71 month range. Nevertheless, in this appeal where the sole
contention is that the 56 month sentence is substantively unreasonable because it is excessive,
we hold that even thus being one month below the guideline range, it is appropriate for us to
afford the sentence the rebuttable presumption of substantive reasonableness authorized by
Rita. See United States v. Goodman, 307 Fed. App’x 811, 2009 WL 122558 (5th Cir. 2009).
Any other result would be wholly illogical.

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                                       No. 10-20408

he committed the arson offense by setting fire to his own home upon discovering
that his wife had deserted him and taken his children with her.
       The district court observed that the firefighters responding to the incident
could have been hurt, and the court noted that Salazar’s criminal history
included convictions for driving while intoxicated and forgery. In addition, the
district court expressed concern that Salazar had also previously been deported
through voluntary departure six times.              The record demonstrates that the
district court considered the 18 U.S.C. § 3553(a) factors, including the specific
concerns that Salazar now raises, to determine that a sentence one month below
the bottom of the guideline range was sufficient but not greater than necessary
to achieve the goals of § 3553(a). “The fact that the appellate court might
reasonably have concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51.
       AFFIRMED.2




       2
           Salazar briefly makes reference (in a footnote to his brief) to the contention that a
presumption of reasonableness should not apply to U.S.S.G. § 2L1.2 because it is
“penologically flawed” and “was not the result of empirical evidence or study,” stating that he
“preserves for possible further review his contention” in this respect, but recognizes that we
have rejected that contention in United States v. Mondragon-Santiago, 564 F.3d 357, 367 (5th
Cir.), cert. denied, 130 S.Ct. 192 (2009). We see no reason to depart from that decision. See
also, United States v. Aguirre-Lopez, supra.

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