     Case: 16-40856      Document: 00513855173         Page: 1    Date Filed: 01/30/2017




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

                                    No. 16-40856                                FILED
                                  Summary Calendar                        January 30, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

NILSON GUILLERJ F-SALAZAR, also known as Nilson Guillermo-Salazar,
also known as Nilson G. Salazar, true name Nilson Guillermo Salazar,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:15-CR-1094-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Nilson Guillerj F-Salazar pled guilty to illegal reentry following
deportation in violation of 8 U.S.C. § 1326(a), (b)(2), and the district court
sentenced him to a within-Guidelines sentence of 46 months in prison. F-
Salazar argues that the district court committed a procedural error when 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-40856    Document: 00513855173     Page: 2   Date Filed: 01/30/2017


                                 No. 16-40856

failed to recognize that it had the authority to grant his motion for a downward
variance, which was based on then pending amendments to U.S.S.G. § 2L1.2.
      In reviewing a sentence on appeal, we first ensure that the district court
did not commit a significant procedural error, such as treating the Guidelines
as mandatory or failing to consider the 18 U.S.C. § 3553(a) factors. United
States v. Robinson, 741 F.3d 588, 598 (5th Cir. 2014). Because F-Salazar did
not present his procedural error argument in the district court, our review is
for plain error. See Puckett v. United States, 556 U.S. 129, 134 (2009). “Plain
error review requires four determinations: whether there was error at all;
whether it was plain or obvious; whether the error affected the defendant’s
substantial rights; and whether this court should exercise its discretion to
correct the error in order to prevent a manifest miscarriage of justice.” United
States v. Dominguez-Alvarado, 695 F.3d 324, 328 (5th Cir. 2012).
      F-Salazar argues that the following statement made by the district court
at sentencing supports his position: “As to the discretion of proposed
amendments . . . , which may or may not become effective . . . , this Court . . .
must apply the version of the Sentencing Guidelines effective at the time of
sentencing, unless application of that version would violate the ex post [facto]
clause of the United States Constitution.” His argument is unavailing.
      The record, when considered in its entirety, more accurately reflects that
the district court was merely recognizing that it was required to begin with the
version of the Guidelines in effect at the time of sentencing.               See
§ 3553(a)(4)(A)(ii); U.S.S.G. § 1B1.11(a); United States v. Myers, 772 F.3d 213,
218 (5th Cir. 2014) (noting the general rule that the district court “must apply
the version of the sentencing guidelines effective at the time of sentencing”);
see also Gall v. United States, 552 U.S. 38, 49 (2007) (holding that all




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                                 No. 16-40856

sentencing proceedings should begin with a correct calculation of the
applicable Guidelines range, which serves as the “initial benchmark”).
      The record further reflects that the district court then did as it was
required to do under Gall — it made an individualized assessment in light of
the facts, F-Salazar’s arguments for a downward variance, the advisory
Guidelines range, and the Section 3553(a) factors. See Gall, 552 U.S. at 49-50.
The district court explained that it had chosen a within-Guidelines sentence in
light of the letters submitted by F-Salazar’s family and friends, the seriousness
of the offense, the need to promote respect for the law, and the need to provide
a just punishment.     Finally, before pronouncing F-Salazar’s sentence, the
district court discussed its recognition that the Sentencing Guidelines are
advisory rather than mandatory. We find the district court understood it had
the authority to impose a downward variance.
      AFFIRMED.




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