United States v. Manuel Ramirez-Jimenez , 572 F. App'x 270 ( 2014 )

Case: 13-50378 Document: 00512664886 Page: 1 Date Filed: 06/16/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-50378 FILED
Summary Calendar June 16, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
MANUEL RAMIREZ-JIMENEZ,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:12-CR-2901-1
Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM: *
Manuel Ramirez-Jimenez challenges the 63-month sentence imposed
following his jury-trial conviction for illegal reentry following deportation, in
violation of 8 U.S.C. § 1326. He contends the within-Guidelines sentence is
substantively unreasonable because it was greater than necessary to satisfy
the sentencing goals provided in 18 U.S.C. § 3553(a). Along that line, Ramirez
maintains, because Sentencing Guideline § 2L1.2 (for illegal reentry)
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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No. 13-50378
effectively double-counts a defendant’s criminal record, the advisory
Guidelines-sentencing range overstated the seriousness of his non-violent
offense, which he claims is only an international trespass. He also contends
the advisory Guidelines-sentencing range and the district court failed to
account for his personal history and circumstances, including his motive for
returning to the United States (allegedly fleeing armed kidnappers), his ties to
Mexico (his wife and work), and his reduced risk of recidivism. Finally,
Ramirez asserts the district court failed to explain properly why a 63-month
sentence was reasonable.
Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the advisory Guidelines-sentencing range for use in
deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51
(2007). In that respect, for issues preserved in district court, its application of
the Guidelines is reviewed de novo; its factual findings, only for clear error.
E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Ramirez does not claim procedural error, but contends only that the sentence
imposed was substantively unreasonable. “A discretionary sentence imposed
within a properly calculated [G]uidelines [sentencing] range is presumptively
reasonable.” United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.
2008).
At the sentencing hearing, the district court considered Ramirez’ request
for a downward variance and ultimately concluded a sentence at the bottom of
the applicable advisory sentencing range was appropriate, based on the
circumstances of the case and the § 3553(a) factors. The district court
considered Ramirez’ mitigation contentions (especially his motive for
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No. 13-50378
returning), presented at the sentencing hearing and on appeal, and the court
adequately explained its reasons for imposing the 63-month sentence. See, e.g.,
United States v. Gomez-Herrera, 523 F.3d 554, 565–66 (5th Cir. 2008)
(discussing similar mitigating factors and district court’s rejection of those
contentions); United States v. Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008)
(same). Further, our court has rejected the oft-repeated claims that double-
counting necessarily renders a sentence unreasonable and that the Guidelines
overstate the seriousness of illegal reentry. See United States v. Duarte, 569
F.3d 528, 529–30 (5th Cir. 2009); United States v. Aguirre-Villa, 460 F.3d 681,
683 (5th Cir. 2006). Ramirez, therefore, has failed to rebut the above-
referenced presumption of reasonableness applied to his 63-month, within-
Guidelines sentence.
AFFIRMED.
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