United States v. Ramirez-Ramirez , 286 F. App'x 144 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 10, 2008
No. 07-20545
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
PEDRO RAMIREZ-RAMIREZ, also known as Pedro Ruiz, also known as Juan
Martinez Jimenez, also known as Thomas Garcia, also known as Pedro
Ramirez, also known as Miguel Martinez, also known as Joe Garcia, also
known as Juan Jimenez-Martinez, also known as Jimenez Martinez, also
known as Juan Jimenez, also known as Pedro Garcia
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CR-400-ALL
Before HIGGINBOTHAM, GARZA, and HAYNES, Circuit Judges.
PER CURIAM:*
Pedro Ramirez-Ramirez appeals the ninety-six-month sentence imposed
following his guilty-plea conviction for being found illegally in the United
States after a prior deportation following a conviction for an aggravated
felony. Ramirez-Ramirez argues that the district court erred in upwardly
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
No. 07-20545
departing under U.S.S.G. § 4A1.3 based on the under-representation of his
criminal history. He also challenges the extent of the upward departure.
The sentence imposed by the district court is reviewed for
reasonableness. Gall v. United States, 128 S. Ct. 586, 594 (2007); United
States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006). The
reasonableness of an upward departure, including both the decision to depart
and the extent of the departure, is reviewed for abuse of discretion. United
States v. Saldana, 427 F.3d 298, 308 (5th Cir. 2005); see also Gall, 128 S. Ct.
at 591. “An upward departure by a district court is not an abuse of discretion
if the court’s reasons for departing 1) advance the objectives set forth in 18
U.S.C. § 3553(a)(2) and 2) are justified by the facts of the case.” Zuniga-
Peralta, 442 F.3d at 347 (internal quotation marks and citations omitted).
In the present case, the upward departure was appropriate in light of
Section 3553's articulated objectives and the facts of this case. The district
court expressly based its decision to upwardly depart on Section 3553(a)
factors, including Ramirez-Ramirez’s history and characteristics, the need for
adequate deterrence, and the need to protect the public from future crimes.
As noted by the district court, not only does Ramirez-Ramirez have eighteen
prior convictions, but he has been deported on six previous occasions. Thus,
the upward departure was not an abuse of discretion.
In challenging the extent of the district court’s departure, Ramirez-
Ramirez contends that the district court committed reversible error by failing
to explain why each intervening offense level was inadequate. But it is well-
settled that the “district court need not go through a ritualistic exercise in
which it mechanically discusses each criminal history category that it rejects
en route to the category it selects.” Zuniga-Peralta, 442 F.3d at 348 n.2;
United States v. Lambert, 984 F.2d 658, 663-64 (5th Cir. 1993) (en banc).
The district court’s reasoning may and does implicitly establish the rationale
for rejecting the intervening levels, and this approach satisfied the court’s
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No. 07-20545
burden. See Lambert, 984 F.2d at 663-64. Thus, the extent of the upward
departure was not an abuse of discretion.
Ramirez-Ramirez’s final argument is one that he makes for the first
time on appeal. He argues that the district court clearly erred by basing its
upward departure on false facts, namely that he had eleven rather than seven
felony convictions. Ramirez-Ramirez did not object to the error in the
summation of his criminal history in the presentence report (“PSR”) or at the
time of sentencing. Because he did not raise this objection, we review only for
plain error. See United States v. Garcia-Mendez, 420 F.3d 454, 456 (5th Cir.
2005). To establish plain error, Ramirez-Ramirez must show that (1) there is
an error, (2) the error is clear or obvious, and (3) it affects his substantial
rights. United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776
(1993); Garcia-Mendez, 420 F.3d at 456. “When these elements are present,
this court may exercise its discretion to correct the error only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings.”
Garcia-Mendez, 420 F.3d at 456 (internal quotation marks and citations
omitted).
Ramirez-Ramirez has not shown that the district court committed plain
error. He does not argue his criminal history score should have been
different, nor does he challenge the accuracy of his detailed criminal history
in the PSR. The district court determined that an upward departure was
appropriate based on the PSR. Furthermore, the record does not suggest that
the exact number of convictions had any effect on the district court’s
sentencing decision. The district court expressly relied on “the totality of the
defendant’s criminal conduct,” including Ramirez-Ramirez’s background,
character and conduct, his numerous prior convictions, and his six prior
deportations. Accordingly, Ramirez-Ramirez has not established plain error.
The judgment of the district court is AFFIRMED.
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