[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15896 MAY 8, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 05-00019-CR-JEC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO JAVIER RAMIREZ-GUTIERREZ,
a.k.a. Javier Ramirez-Gutierrez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 8, 2006)
Before CARNES, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Francisco Javier Ramirez-Gutierrez (herein “Ramirez”) appeals his 60-
month sentence, arguing that the district court imposed an unreasonable sentence.
For the reasons set forth more fully below, we affirm.
Ramirez was indicted on one count of illegal re-entry of the United States by
an alien who previously had been deported, in violation of 8 U.S.C. §§ 1326(a) and
(b)(2). Ramirez initially pled not guilty and filed a motion to suppress statements
made to Immigration and Customs Enforcement (ICE) agents. The court
ultimately denied the motion to suppress and Ramirez subsequently entered a
guilty plea in open court without an agreement. Ramirez admitted in open court
that he previously was deported from the United States in 1999 and that he
returned without the permission of the government.
A presentence investigation report (PSI) set Ramirez’s base offense level at
8, pursuant to U.S.S.G. § 2L1.2. Ramirez was assessed a 16-level enhancement
under § 2L1.2(b)(1)(A) because he previously had been convicted of two violent
felonies, namely a 1994 conviction for cruelty to children involving violence and a
1995 conviction for aggravated assault. Next, Ramirez received a two-level
reduction for acceptance of responsibility under § 3E1.1(a), but the government
indicated that it would not move for an additional one-level reduction under
§ 3E1.1(b). Thus, Ramirez’s total offense level was set at 22. Ramirez was
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assessed six criminal history points, three points each for the cruelty to children
and aggravated assault charges, which placed him in criminal history category III.
With offense level 22, criminal history category III, Ramirez’s recommended
sentencing range was 51 to 63 months’ imprisonment.
At the sentencing hearing, Ramirez alleged that the cruelty to children
charge that resulted in three criminal history points was based upon false
information and did not actually occur. The district court noted that Ramirez had
pled guilty to the charge and it would not re-litigate the conviction, but agreed to
hear from Ramirez’s daughter. Ramirez’s daughter then testified that Ramirez had
not hit her and that the supposed bruises on her arm were birthmarks. She later
clarified that she had been hit, but she did not know whether it was her mother or
her father that hit her, as she was just a “little girl” at the time. The district court
did not find the testimony credible.
Next, Ramirez argued that the government’s decision to withhold the
additional one-level reduction for acceptance of responsibility created an
unwarranted sentencing disparity between defendants who received the additional
reduction by pleading guilty pursuant to an agreement and defendants like Ramirez
who did not enter a plea agreement and did not receive the one-level reduction.
The district court questioned Ramirez as to why he did not enter an agreement to
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get the additional reduction. Ramirez responded in part that he was unwilling to
waive his right to an appeal, and argued that the failure to receive the additional
one-level reduction treated similarly situated defendants differently, a factor to
consider under § 3553(a)(6). Ramirez admitted that, under the guidelines, the one-
level reduction was only available if recommended by the government, but still
requested that the court avoid the unwarranted sentencing disparity when imposing
a sentence.1
The district court stated that Ramirez’s record was bad and that it seemed
that “every time the law enforcement system sees you, you are threatening a
woman or a child or hurting them.” It noted that Ramirez had the right not to enter
an agreement, although it did not “understand the wisdom of that decision.”
Nevertheless, the court stated that, in a post-Booker sentencing regime, it could
give credit for an additional level notwithstanding the government’s decision not to
recommend it, but chose not to do so in this case. The court indicated that it was
“not real clear about the acceptance of responsibility,” did not “think well” of the
fact that Ramirez pled guilty to a charge that he had attempted to undermine by
having his daughter testify, and, while the court would not consider it obstruction
of justice, it was an aggravating factor. Thus, the court adopted the calculations in
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If Ramirez had received the additional one-level reduction, his sentencing range would
have been 46 to 57 months instead of 51 to 63 months.
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the guidelines and found an advisory guidelines range of 51 to 63 months.
Prior to imposing a sentence, the court found that absent the guidelines, it
would probably have imposed a lengthier sentence because Ramirez was a “violent
man” and the court was concerned that someone would end up dead if he kept
returning to the United States. The court saw the purpose of punishment as
removing Ramirez from society, and then imposed a 60-month sentence that it
believed was “very reasonable.”
On appeal, Ramirez argues that his sentence is unreasonable because the
district court “refused to consider evidence” from his daughter showing that he
was, in fact, innocent of the charges that led to a conviction for cruelty to children
and further penalized Ramirez by questioning the “wisdom” of not entering a plea
agreement. He further argues that the failure to take into consideration the
unwarranted sentencing disparity between Ramirez and other similarly situated
defendants rendered the sentence unreasonable. The government argues, inter alia,
that we should hold Ramirez’s case in abeyance pending a decision on the
government’s petition for a rehearing of United States v. Martinez, 434 F.3d 1318
(11th Cir. 2006), in which we rejected the government’s argument that we lacked
jurisdiction to review a sentence for unreasonableness.
Where a defendant challenges his overall sentence, we review for
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unreasonableness. United States v. Winingear, 422 F.3d 1241, 1244 (11th Cir.
2005); United States v. Booker, 543 U.S. 220, 261-62, 125 S.Ct. 738, 765-66, 160
L.Ed.2d 621 (2005) (holding that appellate courts review sentences for
unreasonableness in light of the 18 U.S.C. § 3553(a) sentencing factors).
As a preliminary matter, the government’s request that we hold Ramirez’s
appeal in abeyance pending a decision on whether to rehear the Martinez decision
is now moot, as this Court denied the government’s petition for an en banc
rehearing on March 6, 2006. Accordingly, we have jurisdiction to review
Ramirez’s sentence for unreasonableness. Martinez, 434 F.3d at 1321-22.
At the time of Ramirez’s sentencing on October 6, 2005, the Supreme Court
had issued its ruling in Booker rendering the guidelines advisory only, and,
therefore, the district court, while required to consult and properly calculate the
guideline range, was not bound by the recommended range of 51 to 63 months.
See Booker, 543 U.S. at 259-60, 125 S.Ct. at 764-65 (excising the mandatory
application of the guidelines); United States v. Crawford, 407 F.3d 1174, 1178
(11th Cir. 2005) (holding that, although the guidelines are advisory after Booker,
the district court is still bound to consult them and accurately calculate the
sentencing range). We have rejected the notion that a sentence within the
guidelines is per se reasonable, although “the use of the Guidelines remains central
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to the sentencing process.” United States v. Talley, 431 F.3d 784, 787 (11th Cir.
2005). We have further stated that, “there is a range of reasonable sentences from
which the district court may choose, and when the district court imposes a sentence
within the advisory Guidelines range, we ordinarily will expect that choice to be a
reasonable one.” Id. at 788.
Turning to the instant case, it is first noted that nothing in the record
suggests that the district court penalized Ramirez for not entering a plea agreement
or for presenting the testimony of his daughter to contest his conviction for cruelty
to children. If anything, the court’s concern with the plea agreement was that
Ramirez might have received the additional one-level reduction by entering an
agreement. In fact, the court found that, post-Booker, it “frequently” would have
granted at least the equivalent of a one-point reduction, even in the absence of the
government’s motion, “for the reasons argued by counsel.” However, the court
refused to use its discretion to grant Ramirez the equivalent of a one-level
reduction because it was “not real clear about the acceptance of responsibility,”
especially in light of the fact that Ramirez had attempted to contest one of his prior
convictions for cruelty to children. Nothing in the record indicates that the court,
in any way, refused to grant the additional level or its equivalency because
Ramirez failed to enter a plea agreement.
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As to the testimony regarding the cruelty to children conviction, the court
made clear that it was not going to relitigate the conviction, and it found Ramirez’s
daughter to be an uncredible witness. Nothing suggests, however, that Ramirez
was in any way penalized, as the court declined to find that Ramirez had attempted
to obstruct justice. Instead, the court adopted the PSI’s factual findings guideline
calculations, including the contested conviction (to which Ramirez had admittedly
pled guilty), which recommended a sentencing range of 51 to 63 months. Based on
the court’s view that Ramirez was “a violent man” who had a history of threatening
or hurting women or children, the court imposed a 60-month (5-year) sentence,
well within the range contemplated by the guidelines and based on a specifically
enumerated sentencing factor. See 18 U.S.C. § 3553(a)(1)-(2)(B)-(C) (providing
that district courts should consider the history and characteristics of the defendant
and the need of the sentence to afford adequate deterrence to criminal conduct and
to protect the public from further crimes of the defendant). In fact, in the absence
of the guidelines, the record indicates that the district court would have imposed a
higher sentence.
Furthermore, the statutory maximum sentence in this case was 20 years’
imprisonment, and the district court was bound only by the ceiling imposed by
statute. 8 U.S.C. § 1326(b)(2); United States v. Duncan, 400 F.3d 1297, 1308
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(11th Cir. 2005) (recognizing that the statutory maximum sentence, not the
guideline sentence, is the maximum sentence permitted by law). A five-year
sentence was one fourth of the maximum sentence allowable by law, and it cannot
be said that Ramirez’s sentence was unreasonable. See, e.g., Winingear, 422 F.3d
at 1246 (affirming the defendant’s sentence as reasonable where it was one-tenth of
the statutory maximum sentence).
We, therefore, conclude that nothing in the record suggests that Ramirez was
penalized by the district court for not entering a plea agreement or for contesting
his conviction for cruelty to children, and the district court’s sentence of 60
months’ imprisonment was not unreasonable.
AFFIRMED.
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