Case: 09-40621 Document: 00511119605 Page: 1 Date Filed: 05/24/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 24, 2010
No. 09-40621
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRANCISCO JAVIER GARCIA-RAMIREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:09-CR-180-1
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Francisco Javier Garcia-Ramirez pleaded guilty without an agreement to
one count of being unlawfully present in the United States in violation of 8
U.S.C. § 1326. The district court sentenced him to 77 months in prison, at the
low end of the guidelines range of 77 to 96 months. Garcia-Ramirez now
appeals.
Garcia-Ramirez first contends that the district court committed procedural
error by failing to give adequate reasons for rejecting his arguments for 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 09-40621
nonguidelines sentence and by failing to give proper consideration to the 18
U.S.C. § 3553(a) factors, in particular, the mitigating effect of his alcohol abuse
and his need for treatment. As he raised no objection on either of these grounds,
we review for plain error. See United States v. Mondragon-Santiago, 564 F.3d
357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). The record indicates that
the court heard and considered Garcia-Ramirez’s arguments and the relevant
factors. The court then gave detailed reasons tied to appropriate factors for
choosing a sentence within the guidelines range and rejecting the request for a
variance. Reasons more minimal than these have been deemed legally
sufficient. See Rita v. United States, 551 U.S. 338, 358)59 (2007); United States
v. Rodriguez, 523 F.3d 519, 525)26 (5th Cir. 2008). We discern no error))and
certainly no obvious error for purposes of plain error review))in the court’s
reasons or consideration of the § 3553(a) factors. In addition, Garcia-Ramirez
has failed to demonstrate that any error affected his substantial rights. See
Mondragon-Santiago, 564 F.3d at 364-65.
Garcia-Ramirez next challenges the substantive reasonableness of his
sentence. Although he made specific arguments in the district court that the
guidelines range was greater than necessary to satisfy the § 3553(a) factors, he
did not object to the sentence imposed as unreasonable. We need not reach his
contention that plain error review should not apply, cf. United States v. Peltier,
505 F.3d 389, 391)92 (5th Cir. 2007), as he has failed to show error under the
ordinary standard.
Garcia-Ramirez contends that double-counting of his convictions under
both U.S.S.G. § 2L1.2 and his criminal history results in an excessive sentence,
and that it is “perverse” to impose a greater sentence for illegal reentry than for
his prior cocaine-trafficking offenses. However, the district court was within its
discretion in rejecting these policy-based arguments. See Mondragon-Santiago,
564 F.3d at 366)67. Further, the court took the alleged sentencing disparity into
account by sentencing Garcia-Ramirez at the bottom of the range rather than at
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No. 09-40621
the top. He also contends that his alcohol abuse was a mitigating factor and that
his criminal history was overstated because his convictions were caused by his
alcohol abuse. The court plainly did not agree and believed that Garcia-
Ramirez’s pattern of criminal behavior suggested a likelihood of recidivism. We
cannot say that was an abuse of discretion. In sum, we conclude that Garcia-
Ramirez has not rebutted the presumption of reasonableness. See United States
v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert. denied, 2010 WL 637943 (Mar.
22, 2010) (No. 09-9216).
Garcia-Ramirez also challenges our plain error standard for evaluating
whether failure to give reasons affects substantial rights; the application of plain
error to his substantive reasonableness challenge; and the application of the
presumption of reasonableness to sentences enhanced under U.S.S.G. § 2L1.2,
which he contends is penologically flawed. To the extent that these arguments
are not obviated by our prior discussion, they are foreclosed. See Mondragon-
Santiago, 564 F.3d at 364)67; Peltier, 505 F.3d at 391)92. Garcia-Ramirez
concedes as much and raises them to preserve them for further review.
Finally, the parties agree that the district court erred by entering a
judgment of conviction and sentence pursuant to 8 U.S.C. § 1326(b)(2), because
the Government did not establish for purposes of the statute that Garcia-
Ramirez had a prior conviction for an aggravated felony as opposed to a felony.
Accordingly, we modify the judgment to reflect a conviction under 8 U.S.C.
§ 1326(b)(1), and we remand to the district court for the limited purpose of
correcting the written judgment to reflect this modification.
AFFIRMED AS MODIFIED; LIMITED REMAND FOR CORRECTION OF
JUDGMENT.
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