USA v. Jose Cortes-Ramirez

Filing

UNPUBLISHED OPINION FILED. [13-40418 Affirmed ] Judge: TMR , Judge: JLD , Judge: LHS Mandate pull date is 11/10/2014 for Appellant Jose Alberto Cortes-Ramirez [13-40418]

Case: 13-40418

Document: 00512808096

Page: 1

Date Filed: 10/20/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-40418
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
October 20, 2014

UNITED STATES OF AMERICA,
Plaintiff-Appellee

Lyle W. Cayce
Clerk

v.
JOSE ALBERTO CORTES-RAMIREZ, also known as Jose A. Cortes,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:12-CR-2064-1
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Jose Alberto Cortes-Ramirez pleaded guilty to one charge of illegal
reentry into the United States and was sentenced to serve 46 months in prison.
Now, he argues that the district court erred by concluding that his prior
conviction for aggravated battery under Louisiana Revised Statutes § 14:34
was a crime of violence (COV) pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

Case: 13-40418

Document: 00512808096

Page: 2

Date Filed: 10/20/2014

No. 13-40418
Appellate courts review sentences for reasonableness by engaging in a
bifurcated analysis. Gall v. United States, 552 U.S. 38, 49-51 (2007); United
States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). First, the
reviewing court ensures that the sentencing court committed no significant
procedural error, including improperly calculating the guidelines range. Gall,
552 U.S. at 51. If there is no such error, the appellate court reviews the
substantive reasonableness of the sentence under a deferential abuse of
discretion standard, taking into account the totality of the circumstances.
Gall, 552 U.S. at 51; United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008). The district court’s characterization of a prior offense as a
crime of violence is a question of law that this court reviews de novo. United
States v. Izaguirre-Flores, 405 F.3d 270, 272 (5th Cir. 2005).
Our review of pertinent jurisprudence and the record shows no error in
connection with the district court’s conclusion that Cortes-Ramirez’s § 14:34
conviction was a COV for sentencing purposes.

The record contains the

charging instrument for Cortes-Ramirez’s § 14:34 offense. This document
shows that this offense involved a “metal pipe” and thus excludes the
possibility that Cortes-Ramirez committed the aggravated battery with poison
or other noxious substance. Accordingly, the district court’s conclusion that
this offense was a COV was proper. See United States v. Herrera-Alvarez, 753
F.3d 132, 141-42 (5th Cir. 2014).
AFFIRMED.

2