668 F. App'x 100
5th Cir.2016Background
- Defendant Jose Santos Graciano Ramirez convicted of illegal reentry after removal and sentenced to 15 months imprisonment under U.S.S.G. § 2L1.2.
- At sentencing the district court also revoked a separate term of supervised release and imposed a consecutive 6‑month revocation sentence (that revocation appeal was later dismissed and is not before this court).
- Ramirez did not object to the reasonableness of his sentence in district court and raises his challenges for the first time on appeal.
- Ramirez argued § 2L1.2 overstates the seriousness of illegal reentry (a non‑violent trespass) and double counts prior convictions in both offense level and criminal history.
- The district court imposed a sentence within the advisory Guidelines range after considering the § 3553(a) factors and Ramirez’s mitigating arguments.
Issues
| Issue | Ramirez's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether failure to object below forecloses review | Objection not required to preserve his challenges on appeal | Forfeited; review limited to plain error | Court applied plain‑error standard per Peltier and Puckett and found no plain error |
| Whether § 2L1.2 is entitled to presumption of reasonableness | § 2L1.2 not empirically derived and therefore should not get presumption | Guidelines range entitles sentence to presumption of reasonableness | Rejected; precedent forecloses this challenge and presumption stands |
| Whether § 2L1.2 double counts and overstates seriousness making sentence unreasonable | Sentence unreasonable because prior convictions are double counted and offense is non‑violent trespass | Guideline properly applied; district court considered § 3553(a) factors and mitigation | Rejected based on Fifth Circuit precedent; Ramirez failed to rebut presumption of reasonableness |
| Whether plain error occurred affecting substantial rights | The combined sentence (including revocation) was greater than necessary under § 3553(a) | Revocation issues not before this court; district court adequately considered § 3553(a) for the reentry sentence | No plain error shown; judgment affirmed |
Key Cases Cited
- United States v. Peltier, 505 F.3d 389 (5th Cir.) (standard for preservation and plain‑error review)
- Puckett v. United States, 556 U.S. 129 (Sup. Ct.) (plain‑error test)
- United States v. Campos‑Maldonado, 531 F.3d 337 (5th Cir.) (presumption of reasonableness for within‑Guidelines sentences)
- United States v. Duarte, 569 F.3d 528 (5th Cir.) (rejecting challenges to § 2L1.2 as non‑empirical and double counting)
- United States v. Mondragon‑Santiago, 564 F.3d 357 (5th Cir.) (same)
- United States v. Juarez‑Duarte, 513 F.3d 204 (5th Cir.) (rejecting overstating seriousness argument under § 2L1.2)
- United States v. Koss, 812 F.3d 460 (5th Cir.) (standard for rebutting presumption of reasonableness)
- United States v. Cooks, 589 F.3d 173 (5th Cir.) (same)