United States v. Inocencio Ramirez-Velazco

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-11196
Non-Argument Calendar
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D.C. Docket No. 8:08-cr-00166-SDM-TBM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
INOCENCIO RAMIREZ-VELAZCO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(September 25, 2013)
Before CARNES, Chief Judge, MARTIN and FAY, Circuit Judges.
PER CURIAM:
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Inocencio Ramirez-Velazco appeals his statutory maximum sentence of two
years imprisonment, six months above the advisory guidelines range, imposed
following the revocation of his supervised release under 18 U.S.C. § 3583(e)(3).
Ramirez-Velazco, a Mexican national, was originally sentenced to 30 months
imprisonment, to be followed by three years of supervised release, for illegally
reentering the United States after his deportation for felony convictions. After
completing his custodial term and being removed to Mexico, Ramirez-Velazco
violated the conditions of his supervised release by, once again, illegally reentering
the United States and obtaining two additional criminal convictions — a federal
conviction for being found in the country after deportation and a state conviction
for possessing a forged citizenship document. He contends that the sentence
imposed following the revocation of his supervised release was procedurally
unreasonable because the district court employed a rigid mathematical approach
that assumed that any term less than his original sentence for illegal reentry would
be insufficient to satisfy the purposes of sentencing. He asserts that the district
court’s formulaic approach bypassed consideration of the advisory guidelines
range reflected in Chapter 7 of the Sentencing Guidelines and ran afoul of the
federal policy of individualized sentencing.
A district court, upon finding that the defendant has violated a condition of
his supervised release, may revoke that supervised release and impose a term of
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imprisonment after considering the sentencing factors set forth in 18 U.S.C. §
3553(a). 18 U.S.C. § 3583(e); see United States v. Velasquez Velasquez, 524 F.3d
1248, 1252 (11th Cir. 2008). In reviewing the procedural reasonableness of a
sentence, we must ensure that the district court committed no significant
procedural error, such as failing to accurately calculate the applicable guidelines
range, treating the sentencing guidelines as mandatory, failing to consider the §
3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence, including any deviation from the advisory
guidelines range. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597
(2007). The § 3553(a) factors include the nature and circumstances of the offense,
the history and characteristics of the defendant, the need to afford adequate
deterrence to criminal conduct and protect the public from future crimes of the
defendant, and the applicable guidelines range. 18 U.S.C. § 3553(a).
At Ramirez-Velazco’s revocation hearing, the government requested an
upward variance from the guidelines range of 12 to 18 months imprisonment based
on his long history of deportations followed by illegal entries into the United States
and the need to adequately deter him from committing similar offenses in the
future. Ramirez-Velazco bristled at the notion that sentencing decisions should
primarily be driven by considerations of deterrence, remarking that the entire
process was simply “a numbers game where we just try and move around months
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to see . . . what works and what doesn’t.” The district court, responding to that
particular argument, stated that “it’s probably not an entirely irrational conclusion
that if the purposes of Section 3553 were not accomplished by a sentence of X
months, it is unlikely that the same purposes would be better served by a sentence
of X months minus some positive integer Y months.” The court then imposed a
statutory maximum sentence of two years imprisonment, explaining that it had
considered the § 3553(a) factors, including the advisory guidelines range, and
concluded that a lesser sentence would not be sufficient to accomplish the goals of
sentencing given Ramirez-Velazco’s “lack of recognition of his responsibilities”
under the conditions of his supervised release and his persistent history of
committing similar offenses.
Ramirez-Velazco has not demonstrated that the district court committed any
significant procedural error in imposing that sentence. Although he suggests that
the district court effectively abdicated its discretion and ignored the Chapter 7
policy statements because it used mathematically formulaic language in discussing
the sentence, the district court used that language only in response to Ramirez-
Velazco’s own argument about the apparent futility of “moving months around.”
As the record makes clear, the district court did consider the § 3553(a) factors in
selecting a sentence tailored to the individual circumstances of the case before it,
including the advisory guidelines range, Ramirez-Velazco’s criminal history and
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characteristics, and the need to promote respect for the law, afford adequate
deterrence, and protect the public from further criminal offenses. Because there is
no merit to Ramirez-Velazco’s contention that the district court imposed a
procedurally unreasonable sentence, we affirm.
AFFIRMED.
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