United States v. Jose Ruiz-Salazar
785 F.3d 1270
8th Cir.
2015
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UNITED STATES of America, Plaintiff-Appellee v. Jose Luis RUIZ-SALAZAR, Defendant-Appellant.

No. 14-2666

United States Court of Appeals, Eighth Circuit

May 18, 2015

Submitted: Feb. 9, 2015.

06, , upheld “a similar Alaska statute against ex post facto challenge“).

B. Special Condition of Supervised Release

Our decision in (en banc), forecloses Billiot‘s challenge to the special conditions of supervised release. In that case, the defendant pled guilty to transporting a minor for illegal sexual activity and entered into a plea agreement waiving “all rights to appeal whatever sentence is imposed.” . Like Billiot, the defendant appealed and argued the “conditions of his supervised release are illegal because they are generic conditions imposed without regard to the specific characteristics of his crime as required by 18 U.S.C. § 3583(d).”

In dismissing the appеal, we held that the defendant‘s voluntary appeal waiver prevented consideration of whether the district court abused its discretion in imposing special conditions of supervised release. (citing (holding the defendant‘s special condition of supervised release requiring sex-оffender treatment, despite the fact that the defendant‘s present offense was not a sex crime, he had already completed sex offender treatment, and he had no illegal contact with a minor in over ten years, was unreviewable because the defendant waived his аppellate rights)).

Billiot signed a plea agreement that allowed Billiot the right to appeal the Ex Post Facto issue but waived all other аppeal rights. Billiot does not argue that the plea agreement was unknowing or ‍​​​​​‌​‌​‌‌​​‌​‌​​​‌​‌‌​​​​​​‌​​​​‌​‌​​​‌‌​​​​‌​‍involuntary or that enforcing it would work a miscarriage of justice. Accordingly, the imposition of the special condition of supervised release requiring sex-offender treatment is unreviewable.

III. Conclusion

For the foregoing reasons, we affirm the judgment of the district court.

William J. Raymond, Asst. Fed. Public Defender, Kansas City, MO (Laine Cardarella, Fed. Public Defender, on the brief), fоr appellant.

Roseann A. Ketchmark, Asst. U.S. Atty., Kansas City, MO (Tammy Dickinson, U.S. Atty., on the brief), for appellee.

Before LOKEN, SMITH, and COLLOTON, Circuit Judges.

[Published]

PER CURIAM.

Jose Ruiz-Salazar appeals the district court‘s1 sentence of 70 months’ imprisonment for his illegal reentry into the United States, in violation of 8 U.S.C. § 1326(a) and (b)(2). We affirm.

I. Background

Ruiz-Salazar was convicted in Missouri state court of possessing and trafficking a controlled substance. Hе was thereafter deported to Mexico. Notwithstanding his deportation, Ruiz-Salazar subsequently returned to Missouri. After learning that Ruiz-Salazar had reentered the United States, the United States charged him with illegal reentry following a deportation and conviction of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). Ruiz-Salazar pleaded guilty to the offense.

The Guidelines range for his offense was 70 to 87 months’ imprisonment. At his sentencing hearing, Ruiz-Salazar did not object to the calculated Guidelines range; however, his counsel recommended that the district court grant a downward variance to 36 months’ imprisonment. His counsel argued that the dоwnward variance was appropriate largely because Ruiz-Salazar “supported his family,” would “have to start his life over after being deported,” and was unable to participate in a “Fast-Track” program.2 The court considered his counsel‘s arguments, as well as all othеr relevant sentencing factors, including the nature of the offense and Ruiz-Salazar‘s background. In particular, the court noted Ruiz-Salazar‘s lengthy ‍​​​​​‌​‌​‌‌​​‌​‌​​​‌​‌‌​​​​​​‌​​​​‌​‌​​​‌‌​​​​‌​‍сriminal history and multiple convictions for drug-related offenses. After weighing the relevant considerations, the court sentenced Ruiz-Salazar to 70 months’ imprisonment—the bottom of the Guidelines range.

II. Discussion

On appeal, Ruiz-Salazar contends that the district court “erred by imposing an unreasonable sentence that failed to address the sentencing factors in 18 U.S.C. § 3553(a).” He also asserts that the court failed to address, among other things, “the numerous positive aspects of Mr. Ruiz-Salazar‘s life,” the difficulty of “start[ing] his life anew in [Mexico],” and his lack of access to the “Fast-Track” program. “We review all sentences, whether inside or outside the Guidelines range, under a deferential abuse of discretion standard.” (quotation omitted). “A district court abuses its discretion and imposes an unreasonable sentence when it fails to consider a relevant and significant factor, gives significant weight to an irrelevant or improper factor, or considers the appropriate factors but commits a clear error of judgment in weighing thоse factors.” (quoting ). A sentence within the Guidelines range “is presumed to be substantively reasonable.” (citing ). Ruiz-Salazar raises a claim of procedural error for the first time on appeal, so we review that contention under the plain-error standard. .

Ruiz-Salazar provides neither controlling precedent nor persuasive argument showing that the district court failed to consider any requisite sentencing factor. To the contrary, the court expressly advised him that it considered all of the § 3553(a) factors, including the “nature and circumstances of this offense, the history and ‍​​​​​‌​‌​‌‌​​‌​‌​​​‌​‌‌​​​​​​‌​​​​‌​‌​​​‌‌​​​​‌​‍characteristics of this defendant, the need for the sentence ... to reflect the seriousness of the offense, to promote respect for thе law, to afford adequate deterrence of criminal conduct, and to protect the public from further crimes of this defendant.” The court‘s choice to not robotically recite every other consideration enumerated under § 3553(a) does not amount to reversible error. See (“[T]here is no requirement that the district court rеcite every § 3553(a) factor during sentencing.” (quoting )); (“[D]istrict courts are not required to make ‘robotic incantations that each statutory factor has been considered.‘” (quoting )). Similarly, the court was not required to robotically recite every other sentencing-related argument that Ruiz-Salazar raised, including his arguments about his alleged lack of access to a Fast-Track program. See (holding that a defendant‘s arguments about his lack of access to a Fast-Track program “did not require the district court to acknowledge, sua sponte, that it would have discretion to take this factor into aсcount” in deciding whether to vary a sentence downward); (“The district court is not required to address on record every ... argument set forth by a defendаnt.“).

Ruiz-Salazar‘s argument that the court improperly weighed the sentencing factors that it considered also fails. Ruiz-Salazar disagrees with the court‘s ‍​​​​​‌​‌​‌‌​​‌​‌​​​‌​‌‌​​​​​​‌​​​​‌​‌​​​‌‌​​​​‌​‍balancing of the relevant considerations but does not show that the court committed reversible error by exceeding its broad discretion. See (“The district court has wide latitude to weigh the § 3553(a) factors in each case and assign some factors greater weight than others in determining an appropriate sentence.” (citing )); (en banc) (“[I]t will be the unusual case when we reverse a district court sentence—whether within, above, or below the applicable Guidelines range—as substantively unreasonable.” (quoting )).

After having thoroughly reviewed the record in this case, we hold that Ruiz-Salazar‘s bottom-of-thе-range sentence was neither procedurally nor substantively unreasonable.

III. Conclusion

Accordingly, we affirm the district court‘s sentencing decision.

Notes

1
The Honorable Dean Whipple, United States District Judge for the Western District of Missouri.
2
The “Fast-Track” program generally allows defendants in certain districts to participate in an early case ‍​​​​​‌​‌​‌‌​​‌​‌​​​‌​‌‌​​​​​​‌​​​​‌​‌​​​‌‌​​​​‌​‍disposition program in exchange for a potential four-level reduction in their Guidelines range. See U.S.S.G. § 5K3.1; .
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