United States v. Noe Lopez

Case: 14-50100 Document: 00512805591 Page: 1 Date Filed: 10/16/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-50100
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
October 16, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
NOE RAMIREZ LOPEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:13-CR-284-1
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Noe Ramirez Lopez (Ramirez) pleaded guilty to
illegal reentry after removal, in violation of 8 U.S.C. § 1326. The district court
imposed a sentence of 84 months of imprisonment, which was within the
applicable sentencing guidelines range. On appeal, Ramirez challenges the
substantive reasonableness of his sentence, arguing that it is greater than
necessary to achieve the sentencing goals of 18 U.S.C. § 3553(a).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50100 Document: 00512805591 Page: 2 Date Filed: 10/16/2014
No. 14-50100
We review the substantive reasonableness of the sentence imposed on
Ramirez under an abuse of discretion standard. 1 A sentence imposed within
the guidelines range is entitled to a presumption of reasonableness. 2 “The
presumption is rebutted only upon a showing that the sentence does not
account for a factor that should receive significant weight, it gives significant
weight to an irrelevant or improper factor, or it represents a clear error of
judgment in balancing sentencing factors.” 3
On appeal, Ramirez contends that his sentence is unreasonable because
he is less culpable than the ordinary immigration offender given his cultural
assimilation to the United States. The record shows that the district court
received Ramirez’s statements and his counsel’s arguments on cultural
assimilation. The district court also stated that it considered Ramirez’s
criminal history and the factors outlined in Section 3553(a) when determining
his sentence; in particular, the need for deterrence, protection of the public,
and the need to avoid sentencing disparities. Although Ramirez urges that the
district court erred by assigning insufficient weight to his cultural
assimilation, his disagreement with the district court’s weighing of the Section
3553(a) factors is insufficient to rebut the presumption of reasonableness we
accord to a sentence imposed within the guidelines range. 4
1Gall v. United States, 552 U.S. 38, 49-51 (2007); United States v. Alonzo, 435 F.3d
551, 554 (5th Cir. 2006).
2 Ramirez contends that his sentence is not subject to the presumption of
reasonableness attached to sentences imposed within the guidelines range because the
applicable guidelines range – U.S.S.G. § 2L1.2 – is not empirically based. He concedes,
however, that this argument is foreclosed by our precedent. See United States v. Duarte, 569
F.3d 528, 529-31 (5th Cir. 2009); United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th
Cir. 2008).
3 United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
4 See id.2
Case: 14-50100 Document: 00512805591 Page: 3 Date Filed: 10/16/2014
No. 14-50100
AFFIRMED.
3