United States v. Ramirez-Ibarra, Jero ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 31, 2006*
Decided June 2, 2006
Before
Hon. THOMAS E. FAIRCHILD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-2994
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 04 CR 505-1
JERONIMO RAMIREZ-IBARRA,
Defendant-Appellant. Samuel Der-Yeghiayan,
Judge.
ORDER
While Jeronimo Ramirez-Ibarra was serving an Illinois sentence for drunk
driving, immigration authorities discovered that he was a native and citizen of
Mexico and that he was deported from the United States in 1992 after a conviction
for a drug trafficking offense. The government charged him with being in the
United States without permission after his removal, see 8 U.S.C. § 1326(a), and he
pleaded guilty. At sentencing his attorney argued that a below-guidelines sentence
was appropriate because the lack of a “fast-track” program, see U.S.S.G. § 5K3.1, in
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-2994 Page 2
the Northern District of Illinois creates disparity with § 1326(a) sentences imposed
in districts that have such a program. The district court rejected Ramirez-Ibarra’s
argument because Congress and the Sentencing Commission left the
implementation of such programs to the discretion of the government. After
considering the sentencing factors in 18 U.S.C. § 3553(a), the district court imposed
a sentence of 70 months’ imprisonment—a sentence at the low end of the guidelines
range.
On appeal Ramirez-Ibarra first argues that the presumption of
reasonableness afforded a sentence imposed within the guidelines range is
inconsistent with United States v. Booker, 543 U.S. 220 (2005). Ramirez-Ibarra
concedes, however, that his position is foreclosed by circuit precedent. See United
States v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005). He makes the argument here to
preserve the possibility of review by the Supreme Court.
Ramirez-Ibarra next argues that his sentence is unreasonable because the
district judge did not go below the guidelines range to compensate for the fact that
the Northern District of Illinois does not have a fast-track program. The
consequence, he contends, is that the court failed to consider the sentencing
disparities caused by having fast-track programs in some districts but not others,
thus failing to consider a factor specified in § 3553(a)(6). We resolve this argument
against Ramirez-Ibarra. As we explained in United States v. Martinez-Martinez,
442 F.3d 539 (7th Cir. 2006), and United States v. Galicia-Cardenas, 443 F.3d 553(7th Cir. 2006) (per curiam), Congress knew that disparities would result from
leaving it to the Attorney General to decide which districts should implement fast-
track procedures, and thus a sentence imposed for violating § 1326(a) cannot be
deemed unreasonable simply because the defendant was convicted in a jurisdiction
without a fast-track program. Ramirez-Ibarra’s sentence is within the properly
calculated guidelines range and is therefore presumptively reasonable; he cannot
rebut that presumption by pointing to a factor that does not justify a reduced
sentence. See Martinez-Martinez, 442 F.3d at 542-43.
The key to the foregoing analysis is that the disparities between sentences
imposed in a fast-track district and a district not having a fast-track program do not
rebut the presumption of reasonableness. Another analysis would lead to the same
result. It is that these disparities being authorized by Congress and the Sentencing
Commission, to accomplish an efficient use of limited resources, are not
“unwarranted” and consideration of them is therefore not required by the terms of
18 U.S.C. § 3553(a)(6). The judgment appealed from is AFFIRMED.