NOT RECOMMENDED FOR PUBLICATION File Name: 20a0450n.06 Case No. 19-5746 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Aug 03, 2020 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF TENNESSEE OSCAR GUEVARA SALAMANCA, ) ) Defendant-Appellant. ) OPINION BEFORE: GIBBONS, McKEAGUE, and STRANCH, Circuit Judges. McKEAGUE, J., delivered the opinion of the court in which GIBBONS, J., joined. STRANCH, J. (pp. 7–15), delivered a separate dissenting opinion. McKEAGUE, Circuit Judge. District courts calculate advisory sentencing ranges under the United States Sentencing Guidelines by comparing a defendant’s “base offense level” to his “criminal history category.” A defendant’s prior conviction will sometimes enhance both of those variables, resulting in a higher sentencing range. That is what happened in Oscar Guevara Salamanca’s case. His sentence for an immigration offense, 8 U.S.C. § 1326(a) and (b)(2), might have been in the range of 70 to 87 months’ imprisonment but for an old conviction and suspended sentence of probation in South Carolina for grand larceny. With that conviction added to the mix, his range jumped to 130 to 162 months’ imprisonment. Case No. 19-5746, United States v. Guevara Salamanca Guidelines calculations can get complicated. Suffice it to say that Salamanca’s South Carolina conviction counted because, within the relevant window of time for sentence-calculation purposes, a South Carolina court revoked his probation for pleading guilty to burglary in Virginia. Without the revocation, the lower sentencing range of 70 to 87 months’ imprisonment would have applied. Salamanca argued for a sentence lower than 130 months’ imprisonment, pointing to among other things the age of his South Carolina conviction and probation revocation. The district court addressed Salamanca’s arguments but, in the end, was not swayed; it imposed a 130-month sentence. Salamanca had no further objections at sentencing. But now, Salamanca attacks the validity of his probation revocation. He argues the South Carolina court unconstitutionally revoked his probation in his absence and without the assistance of counsel. And because the revocation was unconstitutional, it should not have been included in his guidelines calculation. Thus, Salamanca says, the district court should have sentenced him using the lower range of 70 to 87 months’ imprisonment. Despite his invocation of the Constitution, we review Salamanca’s claim for plain error because he presents it for the first time on appeal. United States v. Barton, 455 F.3d 649, 652 (6th Cir. 2006). To succeed, Salamanca must identify a district court “(1) error (2) that was obvious or clear, (3) that affected [his] substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Crawford, 943 F.3d 297, 308 (6th Cir. 2019) (quotation omitted). “[O]nly in exceptional circumstances” will these four factors be met. United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc) (alteration in original) (quotation omitted). -2- Case No. 19-5746, United States v. Guevara Salamanca We discern no ...
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