IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-51057

Summary Calendar

UNITED STATES OF AMERICA,

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, 552 U.S. 38, 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.

United States Court of Appeals

Fifth Circuit

FILED

May 18, 2015

Lyle W. Cayce

Clerk

 

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No. 14-51057

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

Jenkins, 712 F.3d 209, 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. MondragonSantiago, 564 F.3d 357, 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, 513 F.3d 204, 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, 654 F.3d 552, 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. SalinasMelendez’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, 646 F.3d 328, 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 Jenkins, 712 F.3d at 214. He thus has not rebutted 

the presumption that his within-guidelines sentence is reasonable. See id.

Accordingly, the district court’s judgment is AFFIRMED.

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 Case: 14-51057 Document: 00513046169 Page: 3 Date Filed: 05/18/2015