Document Info

DocketNumber: 12-30734

Judges: Higginbotham, Owen, Per Curiam, Southwick

Filed Date: 3/12/2013

Status: Non-Precedential

Modified Date: 11/6/2024

  •      Case: 12-30734       Document: 00512171781         Page: 1     Date Filed: 03/12/2013
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    March 12, 2013
    No. 12-30734
    Summary Calendar                        Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff–Appellee,
    v.
    RAMIRO REYES-SANCHEZ, also known as Ramiro Sanchez-Sanchez, also
    known as Reyes Ramiro Sanchez, also known as Ovidio Mejilla-Escorcia, also
    known as Daniel Pena,
    Defendant–Appellant.
    Appeal from the United States District Court
    for the Eastern District of Louisiana
    USDC No. 2:12-CR-108-1
    Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
    PER CURIAM:*
    Ramiro Reyes-Sanchez (Reyes) appeals his 20-month sentence of
    imprisonment and $5000 fine imposed following his guilty-plea conviction for
    being found unlawfully present in the United States following deportation.
    Reyes argues that the district court failed to provide adequate reasons for
    making a variance six months above the top of the sentencing guidelines range.
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-30734     Document: 00512171781       Page: 2   Date Filed: 03/12/2013
    No. 12-30734
    He complains that the district court failed to give consideration to his altruistic
    reasons for entering the United States and gave too much weight to his past
    misdemeanor offenses and his informal removals from the country that had
    occurred fourteen years earlier.
    Because Reyes did not specifically object in the district court to the district
    court’s failure to articulate adequate reasons for the sentence, review is for plain
    error. See Puckett v. United States, 
    556 U.S. 129
    , 134-35 (2009); United States
    v. Whitelaw, 
    580 F.3d 256
    , 259 (5th Cir. 2009). In imposing a sentence six
    months above the guidelines range, the district court considered the arguments
    of the parties, Reyes’s criminal conduct and history, the need for deterrence, and
    the protection of the public. The record reflects that the district court gave fact-
    specific reasons for the variance, which included consideration of the relevant
    § 3553(a) sentencing factors and that it did not give undue significance to any
    irrelevant factors. See United States v. Smith, 
    440 F.3d 704
    , 708 (5th Cir. 2006).
    Reyes has not demonstrated that the district court failed to articulate adequate
    reasons for the sentence and, thus, he has failed to show procedural error, plain
    or otherwise, that rendered his sentence unreasonable. See Puckett, 
    556 U.S. at 135
    ; United States v. Gall, 
    552 U.S. 38
    , 51 (2007).
    Insofar as Reyes objected in the district court to the reasonableness of the
    sentence, he has not shown that the variance reflected an abuse of discretion on
    the part of the district court, and thus, he has not demonstrated that the
    sentence was substantively unreasonable. See Gall, 
    552 U.S. at 51
    ; Rita v.
    United States, 
    551 U.S. 338
    , 356 (2007).
    Reyes also challenges the fine imposed, arguing that it is substantively
    unreasonable because the district court ignored the statement in the presentence
    report (PSR) reflecting his inability to pay a fine based on his then-current
    financial status. He contends that the district court was required to make
    specific findings to support the fine, and he also complains about paying a
    portion of the fine out of his prison wages.
    2
    Case: 12-30734     Document: 00512171781      Page: 3   Date Filed: 03/12/2013
    No. 12-30734
    This court reviews the reasonableness of a defendant’s sentence, including
    a fine, for abuse of discretion. See United States v. McElwee, 
    646 F.3d 328
    , 338-
    39, 340 n.8 (5th Cir. 2011).      Reyes did not object to the district court’s
    consideration of his future earning capacity in imposing the fine, and thus, that
    argument is reviewed for plain error. See Puckett, 
    556 U.S. at 135
    .
    The Guidelines state that “[t]he court shall impose a fine in all cases,
    except where the defendant establishes that he is unable to pay and is not likely
    to become able to pay any fine.” U.S.S.G. § 5E1.2(a). If the district court adopts
    the PSR but does not rely on the recommendation concerning the payment of a
    fine, it is required to make specific findings with respect to the defendant’s
    ability to pay a fine. United States v. Landerman, 
    167 F.3d 895
    , 899 (5th Cir.
    1999).
    The district court’s ruling was not contrary to the PSR’s recommendation
    based on Reyes’s then-current financial status because the district court imposed
    the fine based on Reyes’s future ability to pay the fine. Furthermore, although
    not required to do so, the district court provided specific reasons for its
    determination that Reyes had the future ability to pay the fine. It pointed out
    that Reyes had prior work experience and would be only 35 years old when his
    sentence was completed and that he had reported no physical or mental
    problems precluding his employment. Reyes has not disputed these facts. The
    district court’s determination that Reyes had the future ability to pay the fine
    was plausible based on the record and does not reflect an abuse of discretion or
    a clear or obvious error. See United States v. Rodriguez, 
    15 F.3d 408
    , 414-15 (5th
    Cir. 1994); Puckett, 
    556 U.S. at 135
    . The district court was also entitled to order
    Reyes to have a portion of any income earned in prison attributed to the
    payment of the fine. See. United States v. Brantley, 
    537 F.3d 347
    , 351-52 (5th
    Cir. 2008) (affirming the imposition of a fine in part on the defendant’s ability
    to pay installments from his prison wages). The fact that the fine may impose
    a financial burden upon him is not grounds to vacate the fine. See United States
    3
    Case: 12-30734    Document: 00512171781     Page: 4   Date Filed: 03/12/2013
    No. 12-30734
    v. Matovsky, 
    935 F.2d 719
    , 723 (5th Cir. 1991). The district court did not abuse
    its discretion in imposing the fine. The sentence is AFFIRMED.
    4