USA v. Tomas Ramirez-Hernandez

Filing

UNPUBLISHED OPINION FILED. [10-10244 Affirmed ] Judge: WG , Judge: PRO , Judge: LHS Mandate pull date is 10/13/2010 for Appellant Tomas Ramirez-Hernandez [10-10244]

USA v. Tomas Ramirez-Hernandez

Doc. 0

Case: 10-10244

Document: 00511240944

Page: 1

Date Filed: 09/22/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-10244 S u m m a r y Calendar September 22, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. T O M A S RAMIREZ-HERNANDEZ, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 5:09-CR-72-1

B e fo r e GARWOOD, OWEN, and SOUTHWICK, Circuit Judges. P E R CURIAM:* T o m a s Ramirez-Hernandez appeals the sentence imposed in March 2010 following his guilty plea conviction for illegal reentry following deportation in v i o l a t io n of 8 U.S.C. § 1326. He argues that the 70-month sentence imposed (fo llo w e d by three years' supervised release), an upward variance from the r e c o m m e n d e d guidelines range of 10 to 16 months, is substantively u n r e a s o n a b le . Where the appellant has preserved error, sentences, whether in s id e or outside the advisory guidelines range, are reviewed under an abuse of
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

Dockets.Justia.com

Case: 10-10244

Document: 00511240944 Page: 2 No. 10-10244

Date Filed: 09/22/2010

d is c r e t io n standard. Gall v. United States, 552 U.S. 38, 51 (2007). While it may b e questionable whether Ramirez-Hernandez properly preserved error on the s p e c ific objections raised on appeal, assuming arguendo that his umbrella o b je c t io n to the sentence's asserted substantive unreasonableness was sufficient t o preserve error, we apply the abuse of discretion standard. R a m ir e z -H e r n a n d e z argues that the district court failed to consider that h is early criminal history was related to his drug addiction and that he had a " c h a n g e in lifestyle" since contracting HIV and overcoming his drug addiction. He states that he has not committed a crime other than illegal reentry since 1 9 9 4 . He notes that although he has six prior deportations, three of those r e s u lt e d from illegal reentry convictions that were already counted by the p r e s e n t e n c e report. He also notes that five of the six deportations took place b e fo r e 1995 and that he has only reentered the country twice since 1995, most r e c e n tly in June 2008. W h ile using the Sentencing Guidelines range as "the starting point and in it ia l benchmark" for sentencing, the district court has the discretion to select a non-Guideline sentence after considering the sentencing factors set out in 18 U . S .C . § 3553(a). Gall v. United States, 552 U.S. 38, 51 (2007). In selecting a n o n -G u id e lin e sentence, the district court may, in its discretion, give additional w e ig h t to factors already included in calculating the advisory Guidelines range, " s i n c e to do otherwise would essentially render the Guidelines mandatory." U n ite d States v. Williams, 517 F.3d 801, 809 (5th Cir. 2008). On review for a b u s e of discretion, "[a] non-Guideline sentence unreasonably fails to reflect the s t a t u t o r y sentencing factors where it (1) does not account for a factor that should h a v e received significant weight, (2) gives significant weight to an irrelevant or im p r o p e r factor, or (3) represents a clear error of judgment in balancing the s e n te n c in g factors." United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). The district court's oral and written reasons reflect that the court considered the G u id e lin e s and the 18 U.S.C. § 3553(a) factors, including the nature and 2

Case: 10-10244

Document: 00511240944 Page: 3 No. 10-10244

Date Filed: 09/22/2010

c ir c u m s t a n c e s of the offense of conviction, Ramirez-Hernandez's history and c h a r a c t e r is t ic s , the need to promote respect for the law, the need for the s e n te n c e to provide adequate deterrence, and the need to protect the public from fu r t h e r criminal conduct. While Ramirez-Hernandez argues that his criminal h is t o r y was given improper weight in light of his lifestyle changes since c o n t r a c tin g HIV, it is clear that even within the "criminal history" factor, the d is t r ic t court was also concerned by Ramirez-Hernandez's multiple convictions fo r illegal entry, which continued despite his lifestyle change. Furthermore, the d is t r ic t court relied heavily on the factors of providing deterrence and promoting r e s p e c t for the law in reaching its sentence determination, particularly e m p h a s iz in g the fact that Ramirez-Hernandez's prior (September 1999) 70m o n th sentence for illegal reentry did not deter him from again illegally r e e n te r in g the country. While the 70-month sentence is significantly greater than the advisory G u id e lin e s range of 10-16 months in this case, a mathematical calculation of p e r c e n ta g e deviation does not dictate the substantive reasonableness of a s e n te n c e . United States v. Key, 599 F.3d 469, 476 n.1 (5th Cir. 2010) Instead, t h e sentencing court "must consider the extent of the deviation and ensure that t h e justification is sufficiently compelling to support the degree of the variance." Gall, 552 U.S. at 50. The extent of the variance in this case is sufficiently s u p p o r t e d in the record, particularly in light of Ramirez-Hernandez's prior 70m o n th sentence for illegal reentry. I n sum, the district court did not abuse its discretion. The sentence i m p o s e d "was reasonable under the totality of the relevant statutory factors." U n ite d States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008); see also United S ta te s v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008). H e r n a n d e z 's sentence is A F F IR M E D . Ramirez-

3