USA v. Ramiro Ortiz-Hinojo

Filing

UNPUBLISHED OPINION FILED. [13-50156 Affirmed ] Judge: PEH , Judge: JLD , Judge: JEG Mandate pull date is 03/12/2014 for Appellant Ramiro Ortiz-Hinojo [13-50156]

Case: 13-50156

Document: 00512537317

Page: 1

Date Filed: 02/19/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 13-50156
Summary Calendar

FILED
February 19, 2014
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RAMIRO ORTIZ-HINOJO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:12-CR-1028-1
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
Ramiro Ortiz-Hinojo appeals the 28-month within-guidelines sentence
he received following his guilty plea to illegal reentry into the United States
after deportation.

Ortiz-Hinojo argues that his sentence is greater than

necessary to meet the sentencing goals of 18 U.S.C. § 3553(a) because the
district court did not consider his mitigation arguments, particularly his

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50156

Document: 00512537317

Page: 2

Date Filed: 02/19/2014

13-50156
assertion that his criminal history was overstated due to the impermissible
double counting of a previous conviction.
Because Ortiz-Hinojo did not challenge the substantive reasonableness
of his sentence in the district court, we review for plain error only. See United
States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007). Ortiz-Hinojo’s doublecounting argument is currently foreclosed by this court’s precedent. See United
States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009); United States v. Calbat,
266 F.3d 358, 364 (5th Cir. 2001).
Furthermore, the record reflects that the district court expressly
considered the relevant § 3553(a) factors as well as Ortiz-Hinojo’s arguments
for mitigating his sentence but implicitly overruled those arguments and
concluded that a within-guidelines sentence was appropriate.

See United

States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008). Accordingly, we decline
Ortiz-Hinojo’s invitation to reweigh the § 3553(a) factors because “the
sentencing judge is in a superior position to find facts and judge their import
under § 3553(a) with respect to a particular defendant.” United States v.
Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). Ortiz-Hinojo’s general
disagreement with the propriety of his sentence and the district court’s
weighing of the § 3553(a) factors is insufficient to rebut the presumption of
reasonableness that attaches to his within-guidelines sentence. See United
States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010); United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009); United States v. Cisneros-Gutierrez, 517 F.3d
751, 766 (5th Cir. 2008).
Because Ortiz-Hinojo has not demonstrated error, plain or otherwise, in
the imposition of his within-guidelines 28-month prison term, the judgment of
the district court is AFFIRMED. See Gall v. United States, 552 U.S. 38, 51
(2007); Peltier, 505 F.3d at 392.

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