United States v. Ramirez-Rosales ( 2009 )

Menu:

          IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
March 31, 2009
No. 08-50897
Summary Calendar                Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
GUADALUPE RAMIREZ-ROSALES
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-749-ALL
Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Guadalupe Ramirez-Rosales (Ramirez) pleaded guilty to the charge of
being an alien found unlawfully in the United States following a previous
deportation.   Because Ramirez had a prior conviction for a felony drug-
trafficking offense, her base offense level was increased by 16 levels pursuant to
U.S.S.G. § 2L1.2(b)(1)(A). The district court sentenced Ramirez within the
applicable guidelines range to 41 months of imprisonment and a three-year term
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-50897
of nonreporting supervised release. Ramirez filed a timely notice of appeal and
now challenges the sentence imposed.
Ramirez concedes that this court ordinarily applies a presumption of
reasonableness to within-guidelines sentences. See United States v. Campos-
Maldonado,

531 F.3d 337

, 338 (5th Cir.), cert. denied,

129 S. Ct. 328

 (2008);
United States v. Gomez-Herrera,

523 F.3d 554

, 565-66 (5th Cir.), cert. denied,

129 S. Ct. 624

 (2008). Citing Kimbrough v. United States,

128 S. Ct. 558

, 574-75
(2007), she contends that the presumption should not apply in this case because
§ 2L1.2 is not empirically supported.
The question presented in Kimbrough was whether “a sentence . . . outside
the guidelines range is per se unreasonable when it is based on a disagreement
with the sentencing disparity for crack and powder cocaine offenses.”

128 S. Ct. at 564

. Speaking specifically to the crack cocaine Guidelines, the Court simply
ruled that “it would not be an abuse of discretion for a district court to conclude
when sentencing a particular defendant that the crack/powder disparity yields
a sentence ‘greater than necessary’ to achieve [18 U.S.C.] § 3553(a)’s purposes,
even in a mine-run case.” Id. at 575. In Kimbrough, the Court said nothing of
the applicability of the presumption of reasonableness. Moreover, the appellate
presumption’s continued applicability to § 2L1.2 sentences is supported by this
court’s decision in Campos-Maldonado,

531 F.3d at 338-39

.           The appellate
presumption is therefore applicable in this case.
Ramirez also contends that her 41-month sentence was greater than
necessary to accomplish the goals of sentencing listed in § 3553(a)(2). She points
out that the instant offense did not involve violent conduct and did not pose a
danger to others. She further contends that the offense was not inherently evil
and “was, at bottom, an international trespass.” She also asserts that the
applicable guidelines range double counted her prior drug trafficking conviction
because it resulted in both a 16-level enhancement under § 2L1.2 and an
increase in her criminal history score.     She has abandoned on appeal her
2
No. 08-50897
argument regarding cultural assimilation. See United States v. Lucien,

61 F.3d 366

, 370 (5th Cir. 1995). She also concedes that her argument that she deserved
a lesser sentence based on the disparity that results from fast track early
disposition programs is foreclosed by Gomez-Herrera,

523 F.3d at 557-64

.
The district court heard Ramirez’s request for a sentence below the
guidelines range, but the court pointed out that Ramirez illegally reentered this
country not long after being released from prison. Also, the district court was
disturbed by Ramirez’s notion that the desire to be with her children justified
her illegal reentry offense.   The district court ultimately determined in its
discretion that a sentence within the guidelines range was appropriate. Under
those circumstances, Ramirez has not shown that the district court abused its
discretion in selecting a sentence or, consequently, that the within-guidelines
sentence imposed is unreasonable. See Gall v. United States,

128 S. Ct. 586