Case: 10-51128 Document: 00511537051 Page: 1 Date Filed: 07/12/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 12, 2011
No. 10-51128
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JUAN RAMON-DIAZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:10-CR-523-1
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Juan Ramon-Diaz (Ramon) appeals the sentence imposed following his
guilty plea conviction for illegal reentry into the United States. He contends
that the sentence is greater than necessary to achieve the sentencing goals of 18
U.S.C. § 3553(a); that the guidelines sentencing range was too severe given that
it was based, in part, on a 12-level enhancement that did not take into account
the temporal remoteness of the prior conviction that triggered the enhancement;
and that the Guidelines failed to take into account his personal circumstances,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-51128
including the fact that he had lived in this country for a long time and that he
struggles with alcoholism. Ramon asserts that the offense of illegal reentry is
not a crime of violence, did not pose a danger to others, is not evil in itself, and
is merely “an international trespass.”
Ramon argues that the substantive reasonableness of his sentence should
be reviewed for an abuse of discretion. He does so, however, only to preserve the
issue for further review in light of a circuit split on the issue of the standard of
review. He concedes that, under the law of this circuit, review is limited to plain
error because there was no objection in the district court that the 36-month
sentence was substantively unreasonable. See United States v. Whitelaw, 580
F.3d 256, 259-60 (5th Cir. 2009). To show plain error, the appellant must show
a forfeited error that is clear or obvious and that affects his substantial rights.
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If the appellant makes
such a showing, this court has the discretion to correct the error but only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
In a series of unpublished opinions, this court has rejected the argument
that the staleness of a defendant’s prior conviction renders his within-range
sentence unreasonable. See United States v. Gonzalez-Valencia, 401 F. App’x
888, 888-89 (5th Cir. 2010); United States v. Ortiz-Arriaga, 355 F. App’x 849,
849-50 (5th Cir. 2009), cert. denied, 130 S. Ct. 2133 (2010); United States v.
Gonzales-Torres, 288 F. App’x 927, 928-29 (5th Cir. 2008). This court has also
rejected the argument that a guidelines sentence for illegal reentry is
unreasonable because it is a mere trespass offense. See United States v. Aguirre-
Villa, 460 F.3d 681, 683 (5th Cir.2006). The district court considered Ramon’s
argument for a sentence at the low end of the sentencing guidelines range.
Expressing concern over Ramon’s long criminal history and his use of, inter alia,
multiple aliases and birth dates, the district court ultimately refused to sentence
him to the low end of the advisory guidelines range. Ramon’s mere
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No. 10-51128
disagreement with the sentence does not suffice to rebut the presumption of
reasonableness that attaches to a sentence within the advisory guidelines range.
Cf. United States v. Gomez-Herrera, 523 F.3d 554, 565–66 (5th Cir.2008).
Ramon has shown no error, plain or otherwise, by the district court. See Puckett,
129 S. Ct. at 1429.
AFFIRMED.
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