United States v. Carlos Cordoso-Ramirez , 409 F. App'x 963 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1204
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Carlos Cardoso-Ramirez, *
* [UNPUBLISHED]
Appellant. *
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Submitted: October 22, 2010
Filed: December 7, 2010
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Before RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.
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PER CURIAM.
Carlos Cardoso-Ramirez pled guilty to unlawful reentry after removal following
an aggravated felony conviction (second degree assault with a dangerous weapon) in
violation of 8 U.S.C. § 1326(a) and (b)(2). Based on that previous conviction for a
crime of violence, the Presentence Investigation Report (“PSR”) recommended a 16-
level increase in the advisory guidelines base offense level pursuant to U.S.S.G. §
2L1.2(b)(1)(A)(ii). At sentencing, Cardoso-Ramirez did not dispute that the 16-level
increase applied to the facts of his case, but he argued that a below-guidelines
sentence was appropriate because § 2L1.2 allegedly was not based on empirical data
or careful study by the United States Sentencing Commission. Cardoso-Ramirez also
contended that his settled family life and stable work history weighed in favor of a
below-guidelines sentence pursuant to the 18 U.S.C. § 3553(a) factors. The district
court1 rejected Cardoso-Ramirez’s arguments and sentenced him to 41 months’
imprisonment, the lower end of the advisory guidelines range.
On appeal, Cardoso-Ramirez contends that the district court failed to explain
his sentence adequately. Because he failed to object to this alleged procedural error
at the time of sentencing, our review is for plain error. United States v. Phelps, 536
F.3d 862, 866 (8th Cir. 2008). In evaluating the explanation for the sentence, we
consider “the entire sentencing record, not merely the district court’s statements at the
hearing.” United States v. Perkins, 526 F.3d 1107, 1111 (8th Cir. 2008). “Where a
sentencing judge imposes a sentence within the advisory guideline range,
‘[c]ircumstances may well make clear’ that the judge believed the case was typical,
and ‘rest[ed] his decision upon the Commission’s own reasoning that the Guidelines
sentence is a proper sentence.’” United States v. Gray, 533 F.3d 942, 944 (8th Cir.
2008) (alteration in original) (quoting Rita v. United States, 551 U.S. 338, 357
(2007)).
In this case, the parties submitted detailed sentencing memoranda, and the
district court noted at sentencing that Cardoso-Ramirez made “a very strong argument
in [the] papers” for a below-guidelines sentence and that it was “intrigued” by those
arguments. In turn, the Government emphasized that a within-guidelines sentence of
41 to 51 months was appropriate because (1) Cardoso-Ramirez used a false name with
law enforcement in an attempt to avoid apprehension for his illegal reentry, and (2)
the 21-month sentence imposed for Cardoso-Ramirez’s previous conviction evidently
had failed to provide sufficient deterrent effect. After hearing the Government’s
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
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arguments, the district court decided that a sentence at the lower end of the advisory
guidelines range was appropriate. In view of the entire sentencing record and the
district court’s familiarity with Cardoso-Ramirez’s arguments, “any error on the
district court’s part in offering no more than an abbreviated articulation of its
reasoning did not prejudice [the defendant’s] substantial rights,” and we find no plain
error. Perkins, 526 F.3d at 1111.
Cardoso-Ramirez also renews his argument that § 2L1.2 is not based on
empirical research or careful study. While such an argument properly was presented
to the district court, it is not relevant on appeal, as we review only the substantive
reasonableness of the sentence pronounced by the district court. See United States v.
Talamantes, 620 F.3d 901, 902 (8th Cir. 2010) (per curiam) (“Whatever the district
court’s views as to the Sentencing Commission’s policy judgment underlying a
particular guidelines provision, our proper role on appeal is only to determine whether
the court abused its discretion by imposing a substantively unreasonable sentence on
a particular offender.”); cf. United States v. Battiest, 553 F.3d 1132, 1137 (8th Cir.
2009) (“[E]ven if there were merit to Battiest’s argument that child pornography
[advisory guidelines] sentences are unduly harsh, an issue which we need not address,
we still would not hold the district court abused its discretion by rejecting Battiest’s
claim.”).
Finally, Cardoso-Ramirez argues that the sentence imposed is substantively
unreasonable. We review the sentence chosen by the district court for abuse of
discretion. See Talamantes, 620 F.3d at 902. A sentencing court abuses its discretion
where it “fails to consider a relevant factor that should have received significant
weight, gives significant weight to an improper or irrelevant factor, or considers only
appropriate factors but nevertheless commits a clear error of judgment by arriving at
a sentence that lies outside the limited range of choice dictated by the facts of the
case.” United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005). “[S]ubstantive
appellate review in sentencing cases is narrow and deferential. . . . [I]t will be the
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unusual case when we reverse a district court sentence—whether within, above, or
below the applicable Guidelines range—as substantively unreasonable.” United
States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc) (quoting United States
v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir. 2008)).
Here, the district court noted the “strong” arguments made by Cardoso-Ramirez
but concluded that a sentence within the advisory guidelines range was appropriate.
We presume that a sentence within the advisory guidelines range is reasonable.
United States v. Zastrow, 534 F.3d 854, 856 (8th Cir. 2008). Cardoso-Ramirez argues
that the district court failed to give proper consideration to his commitment to family,
his work ethic, and the fact that he had only a single conviction, for what he
characterizes as a “bar fight,” prior to his illegal reentry. To the extent Cardoso-
Ramirez attempts to minimize the seriousness of the “bar fight,” we note that he did
not object to the statement in the PSR that he “repeatedly hit three men in the head
with a crowbar.” PSR ¶ 22; see United States v. Paz, 622 F.3d 890, 891 (8th Cir.
2010) (“Because Paz did not object to the underlying factual basis for his [prior]
conviction, this court accepts the facts set forth in the PSR.”). In any event, “the
district court considered [Cardoso-Ramirez’s] arguments and found them
unpersuasive.” Phelps, 536 F.3d at 869. There was no abuse of discretion in this
case, and we affirm his sentence.
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