United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS FILED
FOR THE FIFTH CIRCUIT April 4, 2007
Charles R. Fulbruge III
Clerk
No. 06-10439
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDDY RAMIREZ,
Defendant-Appellant.
_______________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:01-CR-41-2
_______________
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Freddy Ramirez appeals the 36-month sentence that was imposed following the
district court’s revocation of his term of supervised release. Ramirez argues that his sentence
is unreasonable because it exceeded the advisory guideline range and because the district
court failed to provide sufficient reasons for the sentence. He requests this court to vacate
his sentence and remand the case for resentencing.
*
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this opinion should not be published and is not precedent except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.
The Government has moved for dismissal of the appeal or for summary affirmance
on the ground that this court lacks jurisdiction to consider Ramirez’s appeal under 18 U.S.C.
§ 3742(a)(4). The Government contends that Ramirez has challenged his sentence as
“unreasonable” rather than “plainly unreasonable,” citing 18 U.S.C. § 3742 (a)(4). The
Government’s motion for dismissal of the appeal or for summary affirmance is denied. The
Government’s alternative request for an extension of time to file an appeal brief is denied as
unnecessary.
We have yet to decide whether revocation sentences imposed following the release
of United States v. Booker, 543 U.S. 220 (2005), should be reviewed under the
reasonableness standard or the plainly unreasonable standard. See United States v. Hinson,
429 F.3d 114, 120 (5th Cir. 2005), cert. denied, 126 S. Ct. 1804 (2006). Nevertheless,
resolution of this issue is not needed to dispose of this appeal because Ramirez has not
shown that he should prevail under either standard. See id. Ramirez’s sentence exceeded
the advisory guidelines sentence for his underlying offense but not the pertinent statutory
maximum sentence. Further, a review of the record demonstrates that the district court
considered and applied the relevant sentencing factors. See United States v. Smith, 440 F.3d
704, 707 (5th Cir. 2006). Consequently, the sentence was neither unreasonable nor plainly
unreasonable.
AFFIRMED; MOTION FOR DISMISSAL OR SUMMARY AFFIRMANCE
DENIED; ALTERNATIVE REQUEST FOR EXTENSION OF TIME DENIED AS
UNNECESSARY.