United States v. Jose Ramos-Martinez , 712 F. App'x 453 ( 2018 )

Case: 17-50497 Document: 00514350215 Page: 1 Date Filed: 02/16/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-50497
Fifth Circuit
Summary Calendar
FILED
February 16, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
JOSE ALEXANDER RAMOS-MARTINEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:17-CR-106-1
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Jose Alexander Ramos-Martinez challenges the sentence imposed for his
guilty plea conviction for illegal reentry into the United States. He argues that
the within-guidelines sentence of 16 months of imprisonment and one year of
supervised release was greater than necessary to achieve the sentencing goals
of 18 U.S.C. § 3553(a) and therefore is substantively unreasonable.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 17-50497
Because Ramos-Martinez did not object to the reasonableness of his
sentence in the district court, we will review for plain error. See United States
v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Ramos-Martinez notes that
there is a circuit split on the issue whether the failure to object to the
reasonableness of a sentence requires plain error review, and he raises the
issue to preserve it for further review.
To demonstrate plain error, Ramos-Martinez must show a forfeited error
that is clear or obvious and that affects his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have
the discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
Because the sentence falls within the properly calculated advisory
guidelines ranges, it is entitled to a presumption of reasonableness. See United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Ramos-Martinez argues
that the sentence imposed for his illegal reentry offense should not be accorded
a presumption of reasonableness because the applicable Guideline, U.S.S.G.
§ 2L1.2, is not empirically based. However, he concedes that his argument is
foreclosed. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009);
United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
He raises the issue to preserve it for further review.
In previous cases, we have rejected the arguments that Ramos-Martinez
raises on appeal. We have not been persuaded by the contention that § 2L1.2’s
lack of an empirical foundation necessarily renders its application
unreasonable. See Mondragon-Santiago, 564 F.3d at 366-67. Nor have we
been persuaded that the offense of illegal reentry is treated too harshly under
§ 2L1.2 because it is in essence an international trespass. See United States v.
Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008). We have rejected the
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contention that § 2L1.2’s double-counting of a defendant’s criminal history
necessarily renders a sentence unreasonable. See Duarte, 569 F.3d at 529-31.
Further, Ramos-Martinez’s contention that his allegedly benign motives for
returning to the United States warranted a lesser sentence is unavailing. See
United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). His
arguments amount to a request for this court to reweigh the sentencing factors,
which we will not do. See United States v. McElwee, 646 F.3d 328, 344 (5th
Cir. 2011).
Ramos-Martinez has not shown that the district court failed to consider
any significant factors, gave undue weight to any improper factors, or clearly
erred in balancing the sentencing factors; thus, he has not rebutted the
presumption of reasonableness. See Cooks, 589 F.3d at 186. Accordingly, the
judgment of the district court is AFFIRMED.
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