Case: 19-50949 Document: 00515400356 Page: 1 Date Filed: 04/30/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 19-50949 April 30, 2020 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff - Appellee v. FRANCISCO RODRIGUEZ-SALDANA, also known as Francisco Saldana- Rodriguez, Defendant - Appellant Appeal from the United States District Court for the Western District of Texas Before OWEN, Chief Judge, and HIGGINBOTHAM and WILLETT, Circuit Judges. PATRICK E. HIGGINBOTHAM, Circuit Judge: Appellant Francisco Rodriguez-Saldana was sentenced to 24 months’ imprisonment after pleading guilty to felony illegal reentry. He was in the United States to receive necessary eye surgery. This surgery became part of the dialogue between counsel and the district court at the sentencing hearing. Now, Rodriguez-Saldana contends the prospect that he would receive surgery while in prison was a “dominant factor” in the sentence imposed, which would Case: 19-50949 Document: 00515400356 Page: 2 Date Filed: 04/30/2020 No. 19-50949 be improper under the Supreme Court’s decision in Tapia v. United States. 1 Reviewing for plain error, we affirm. I. Rodriguez-Saldana, a citizen of Mexico, pled guilty in August 2019 to illegally reentering the United States after removal. 2 This charge was precipitated by his December 2018 arrest for possession of less than one gram of a controlled substance, which was dismissed for insufficient evidence. After entering federal custody, an immigration check revealed two prior convictions for illegal reentry. Rodriguez-Saldana was first ordered removed on January 7, 2010. He was sentenced to eight months’ imprisonment for his first illegal reentry conviction in April 2010 and to 16 months’ imprisonment for his second such conviction in June 2014. These convictions, along with other state convictions for possession with intent to deliver a controlled substance (September 2009), failure to identify (May 2014), and possession of less than one gram of a controlled substance (July 2017), led to a criminal history category of V and an adjusted offense level of 16 in Rodriguez-Saldana’s presentencing report (PSR). This was reduced to 13 for acceptance of responsibility. Rodriguez-Saldana’s imprisonment range under the Sentencing Guidelines was 30 to 37 months. At the sentencing hearing, the district court asked Rodriguez-Saldana about his family in Mexico and asked, “Wouldn’t you rather be with them than in jail?” Rodriguez-Saldana answered, “I needed an operation, and I can’t pay it over there.” This was the first mention of the eye surgery at the brief hearing. Next, the Government, when asked its position on the sentence, said it considered the Guidelines range of 30 to 37 months appropriate since 1 564 U.S. 319, 332 (2011). 2 8 U.S.C. § 1326. 2 Case: 19-50949 Document: 00515400356 Page: 3 Date Filed: 04/30/2020 No. 19-50949 Rodriguez-Saldana has received “higher and higher sentences each time he’s come here” and been convicted of illegal reentry. The district court said, “That works fine. Eight months to 16 months, now to 30 months.” In response, Rodriguez-Saldana’s counsel explained that his client was in the United States ...
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