United States v. Alfredo Lopez Ramirez ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 13, 2007
No. 07-12604 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00083-CR-HL-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFREDO LOPEZ RAMIREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(November 13, 2007)
Before BIRCH, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Alfredo Lopez Ramirez appeals his 72-month sentence imposed after he pled
guilty to illegally entering the United States after deportation, in violation of 8
U.S.C. § 1326(a) and 8 U.S.C. § 1326(b)(2). Ramirez argues that his sentence is
unreasonable because it is an unjustified extraordinary upward variance from the
applicable guideline range of 21 to 27 months. For the following reasons, we
AFFIRM.
I. BACKGROUND
Citing § 3553(a)(1), the district court based its variance on Ramirez’s
criminal history and his three prior deportations from the United States. Ramirez’s
first conviction in the United States occurred in 1992 when he was nineteen years
old. He has been convicted eight times on various counts including: (1) driving a
vehicle without the owner’s consent; (2) receiving stolen property; (3) possession
of a controlled substance (heroin); (4) burglary; (5) illegal entry into the United
States; (6) burglary of a business structure and grand theft; (7) burglary of a
business structure and grand theft again; and (8) possession of cocaine, possession
of methamphetamine, and possession of drug related objects. Ramirez’s eighth,
and most recent, conviction occurred in 2004 when he was 32 years old.
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II. DISCUSSION
We review Ramirez’s sentence for reasonableness. United States v. Booker,
543 U.S. 220, 264, 125 S.Ct. 738, 767 (2005); United States v. Crawford, 407 F.3d
1174, 1179 (11th Cir. 2005). After Booker, sentencing requires two steps: first, the
district court must correctly calculate the guideline range; “[s]econd, the district
court must consider several factors to determine a reasonable sentence.” United
States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (per curiam). Ramirez does
not challenge the calculation of his 21 to 27 month guideline range, a product of
his criminal history category of V and a total offense level of 10. Rather, he
contends only that his 72-month sentence is substantively unreasonable.
Our reasonableness review is deferential and requires us to “evaluate
whether the sentence imposed by the district court fails to achieve the purposes of
sentencing as stated in [§] 3553(a).” Id. at 788. The party challenging “the
sentence bears the burden of establishing that the sentence is unreasonable in light
of [the] record and the factors in section 3553(a).” Id.
In arriving at a reasonable sentence, the district court is required to consider
the factors set out in 18 U.S.C. § 3553(a):
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
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protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
Id. at 786 (citing 18 U.S.C. § 3553(a)). It is sufficient for the district court to
acknowledge that it has considered these factors; it need not explicitly discuss each
of them. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). We have
recognized that “there is a range of reasonable sentences from which the district
court may choose.” Talley, 431 F.3d at 788. Necessarily, there are also “sentences
outside the range of reasonableness that do not achieve the purposes of sentencing
stated in § 3553(a) and that thus the district court may not impose.” United States
v. Martin, 455 F.3d 1227, 1237 (11th Cir. 2006).
After review of the presentence investigation report and sentencing
transcript, and upon consideration of the briefs of the parties, we discern no
reversible error. Ramirez’s extensive criminal history, including certain criminal
conduct that was not factored into his guideline range, was sufficient to justify the
variance in this case. Even if we considered this sentence an extraordinary
variance, we would still find the district court’s sentence reasonable. See United
States v. McVay, 447 F.3d 1348, 1357 (11th Cir. 2006) (noting that “extraordinary
circumstances” support an extraordinary variance); see also United States v.
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Valdes, ___ F.3d ____, 2007 WL 2700598, at *1 (11th Cir. Sept. 18, 2007)
(suggesting that a sentence more than double the guidelines range could be
extraordinary).
III. CONCLUSION
Ramirez argues that his sentence is unreasonable because it is an unjustified
extraordinary upward variance from the applicable guideline range of 21 to 27
months. The sentencing court is authorized to base its variance on “the history and
characteristics” of Ramirez, 18 U.S.C. § 3553(a)(1), and Ramirez has not satisfied
his burden of establishing that his sentence was unreasonable in light of his
individual circumstances. Accordingly, we affirm.
AFFIRMED.
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