IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30635
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NELSON LEONIDAS RAMIREZ GUERRERO, also known
as Nelson Ramirez, also known as Alex Roberto,
also known as Anthony Miranda,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 00-CR-60046-ALL
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January 22, 2002
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Nelson Leonidas Ramirez Guerrero (“Ramirez”) appeals the 36-
month sentence imposed by the district court pursuant to 18 U.S.C.
§ 2326. Ramirez contends that the additional sentence constitutes
impermissible double-counting, an upward departure, and is illegal.
We must uphold a sentence unless the sentence was imposed in
violation of law, resulted from an error in the Guideline
application, or was an unreasonable departure from the applicable
*
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that this opinion should not be published and is not precedent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.
No. 01-30635
-2-
Guideline range. United States v. Kirk, 111 F.3d 390, 393 (5th
Cir. 1997). Ramirez concedes that review is for plain error only.
Under Fed. R. Crim. P. 52(b), we may correct forfeited errors only
when the appellant shows: (1) that there is an error, (2) that is
clear or obvious, and (3) that affects his substantial rights.
United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en
banc) (citing United States v. Olano, 507 U.S. 725, 730-36 (1993)).
If these factors are established, the decision to correct the error
is within our sound discretion, and we will not exercise that
discretion unless the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Olano,
507 U.S. at 736.
Section 2326(1), 18 U.S.C., provides that anyone who has been
convicted of engaging in fraud by mail, wire, or other means, or
who has been convicted of conspiracy to commit such an offense, in
connection with the conduct of telemarketing, “shall be imprisoned
for a term of up to 5 years in addition to any term of
imprisonment” that is authorized by certain enumerated statutes.
Section 2326(2), 18 U.S.C., mandates an additional, maximum 10-year
sentence if the fraud targeted persons over the age of 55 or
victimized ten or more persons over the age of 55. Id. Section
1343, 18 U.S.C., is one of the statutes enumerated in 18 U.S.C.
§ 2326.
Ramirez’s plea agreement, his presentence report, and his
signed “Affidavit of Understanding of Maximum Penalty and
Constitutional Rights” specified that under 18 U.S.C. § 2326, he
was subject to a maximum five-year sentence of imprisonment in
No. 01-30635
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addition to any term of imprisonment imposed under 18 U.S.C. § 371.
Ramirez has not identified precedent supporting his position that
the sentence imposed pursuant to 18 U.S.C. § 2326 constituted
double-counting, an upward departure, or an illegal sentence.
Accordingly, Ramirez has not shown plain error. United States v.
Webster, 162 F.3d 308, 358 (5th Cir. 1998). The judgment of the
district court is AFFIRMED.