United States v. Celestino Ramirez-Hernandez ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13181 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 10, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cr-20026-DLG-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
CELESTINO RAMIREZ-HERNANDEZ,
a.k.a. Leonel Lopez,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 10, 2011)
Before PRYOR, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Celestino Ramirez-Hernandez appeals his sentence of 70 months of
imprisonment for reentering the United States illegally. 8 U.S.C. § 1326(a),
(b)(2). Ramirez-Hernandez argues that his prior conviction for statutory rape did
not qualify as a crime of violence and his sentence is unreasonable. We affirm.
The district court correctly determined that Ramirez-Hernandez’s prior
conviction in a Georgia court for statutory rape constituted a crime of violence. A
defendant is subject to a 16-point increase in his offense level if he previously has
been deported after being convicted of a “crime of violence.” United States
Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii) (2009). “Statutory rape” is
considered a “crime of violence” under section 2L1.2, id. § 2L1.2 cmt. n.1(B)(iii),
and Ramirez-Hernadez admitted at sentencing that his prior conviction was
equivalent to the generic offense listed in the Guidelines. Ramirez-Hernandez
argues that his crime did not involve the type of physical force required to qualify
as a crime of violence, but “[i]t is well settled that a felony conviction for an
enumerated offense qualifies as a ‘crime of violence’ under § 2L1.2, whether or
not the use of physical force is an element of the crime.” United States v.
Palomino Garcia, 606 F.3d 1317, 1327 (11th Cir. 2010); see also U.S.S.G. App. C,
amend. 722 (Enumerated offenses “are always classified as ‘crimes of violence,’
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regardless of whether the prior offense expressly has as an element the use,
attempted use, or threatened use of physical force against the person of another.”).
Ramirez-Hernandez’s sentence is both procedurally and substantively
reasonable. The district court correctly calculated Ramirez-Hernandez’s advisory
guideline range and imposed a sentence at the bottom of the guideline range after
considering the “presentence report which contains the advisory guidelines[] and
the statutory factors.” Ramirez-Hernandez argues that the district court failed to
take into account his “own unique circumstances,” but the district court stated that
it had considered Ramirez-Hernandez’s “statements” in fashioning an appropriate
sentence. The district court reasonably determined that a sentence of 70 months of
imprisonment was required to punish Ramirez-Hernandez for reentering the
United States illegally and to deter similar future conduct. The district court did
not abuse its discretion.
Ramirez-Hernandez’s sentence is AFFIRMED.
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