Case: 14-11226       Document: 00513300655         Page: 1     Date Filed: 12/09/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 14-11226
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                          December 9, 2015
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellee

v.

OSCAR JAVIER SALINAS,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:14-CR-131-1


Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
       Oscar Javier Salinas pleaded guilty to possession of child pornography,
in violation of 18 U.S.C. § 2252A(a)(5)(B). After determining Salinas’ advisory
sentencing range under the Sentencing Guidelines was 135 to 168 months’
imprisonment, the district court sentenced him to, inter alia, 135 months’
imprisonment.       Salinas challenges the substantive reasonableness of that
sentence, contending: Guideline § 2G2.2, pertaining to child pornography,


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-11226

lacks an empirical basis; and, the court failed to consider mitigating factors in
support of a downward departure or variance.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the advisory Guidelines-sentencing range for use in
deciding on the sentence to impose. Gall v. United States, 

, 51
(2007). In that respect, for issues preserved in district court, its application of
the Guidelines is reviewed de novo; its factual findings, only for clear error.
E.g., United States v. Cisneros-Gutierrez, 

, 764 (5th Cir. 2008). As
noted, Salinas does not claim procedural error; he maintains his sentence is
substantively unreasonable.
      His claim that Guideline § 2G2.2 lacks an empirical basis, and, therefore,
fails to distinguish between the least culpable and most culpable defendants,
is foreclosed by our precedent. E.g., United States v. Miller, 

, 121–
22 (5th Cir. 2011).
      In maintaining his sentence is substantively unreasonable in the light of
mitigating evidence he presented to the district court, Salinas contends he
deserved a lesser sentence due to: his lack of a prior criminal history; the fact
that he never attempted to make physical contact with a minor; his education
and employment history; his desire to seek treatment; the lack of a market
effect from his actions; and, his acceptance of responsibility.         The court
considered Salinas’ assertions in support of a downward departure or variance,
as well as the 18 U.S.C. § 3553(a) sentencing factors, and concluded a sentence
at the bottom of the applicable Guidelines sentencing range was appropriate.
Salinas’ contentions amount to a mere disagreement with the weighing of the
§ 3553(a) factors, and do not rebut the presumption of reasonableness that



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                               No. 14-11226

applies to his within-Guidelines sentence. See United States v. Rashad, 

, 644 (5th Cir. 2012); United States v. Cooks, 

, 186 (5th
Cir. 2009).
      AFFIRMED.




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