Case: 14-51057      Document: 00513046169         Page: 1    Date Filed: 05/18/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-51057
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            May 18, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

EVARISTO SALINAS-MELENDEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:14-CR-1033-1


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Evaristo Salinas-Melendez pleaded guilty, without the benefit of a plea
agreement, to illegal reentry and received a 46-month prison sentence to be
followed by three years of supervised release. Salinas-Melendez challenges
that prison term, arguing that it is greater than necessary to achieve the
purposes of sentencing. We review the sentence for abuse of discretion, see
Gall v. United States, 

, 51 (2007), and, because it falls within the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-51057

guidelines range, we presume that it is reasonable, see United States v.
Jenkins, 

, 214 (5th Cir. 2013).
      According to Salinas-Melendez, the guidelines sentencing range
overstated the seriousness of the illegal reentry offense on the grounds that
the relevant Guideline is not empirically based and that the enhancement to
his offense level that he received for a prior burglary conviction did not fully
account for the age and nature of that conviction. As he acknowledges, this
objection has been rejected by our court. See United States v. Mondragon-
Santiago, 

, 366-67 (5th Cir. 2009). As for his contention that the
guidelines range was too severe on the basis that illegal reentry is not a crime
of violence and amounts to merely an international trespass, this court has
rejected the assertion that characterizing an illegal reentry as a mere trespass
renders a within-guidelines sentence unreasonable.        See United States v.
Juarez-Duarte, 

, 212 (5th Cir. 2008).
      Next, Salinas-Melendez argues that the within-guidelines sentence did
not take into account his motive for returning to the United States—that he
was afraid to remain in Mexico after he was kidnapped and tortured by gang
members. He provided a detailed account of his purported kidnapping and
torture in his interview with the probation officer, and he reiterated the
account in a written submission to the court and at the sentencing hearing.
The district court, which is in the best position to find facts and judge their
import, see United States v. Scott, 

, 555 (5th Cir. 2011), expressed
skepticism about the events that Salinas-Melendez related because he could
not corroborate them and, even if they were true, questioned whether they
were his actual motivation for returning to the country given that he returned
so soon after he was deported.      The district court heard and understood
Salinas-Melendez’s arguments for a below-guidelines sentence.         It simply



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                                 No. 14-51057

determined that the considerations that he raised did not overcome his
extensive criminal history, five prior deportations, and that he illegally
returned to the United States after he was warned not to do so. Salinas-
Melendez’s arguments amount to a disagreement with the balance among the
sentencing factors that the district court struck, but we will not reweigh those
factors. See United States v. McElwee, 

, 344-45 (5th Cir. 2011).
He has failed to show that the district court did not consider a factor that
should have received significant weight, gave significant weight to a factor it
should have discounted, or made a clear error of judgment when it balanced
the relevant factors. See 

. He thus has not rebutted
the presumption that his within-guidelines sentence is reasonable. See 

district court’s judgment is AFFIRMED.




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