IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
F I L E D
August 20, 2007
No. 06-40968
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
OSCAR SANCHEZ-RAMIREZ
also known as Omar Ramirez-Rodriguez
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:
Oscar Sanchez-Ramirez (“Sanchez”) appeals his post-Booker, non-
Guideline sentence as unreasonable. We AFFIRM.
I.
Sanchez was charged by indictment with one count of conspiring to
transport illegal aliens and five counts of aiding and abetting in the
transportation of the illegal aliens. He pleaded guilty to all counts without the
benefit of a plea agreement.
The presentence report (“PSR”) described the offense as follows. On the
morning of August 16, 2005, a dehydrated Evelyn Yesenia Alfaro-Contreras
No. 06-40968
(“Alfaro”) advised a ranch hand near Sarita, Texas, that a juvenile boy had died
and that she and the boy had been left behind by a large number of illegal aliens.
Immigration authorities discovered the body of a 13-year-old boy, identified as
E.E., who had died of heat stroke. Twenty illegal aliens including Sanchez were
apprehended. One alien, a diabetic with heart problems, had not taken her
medicine for two days, and she had to be sent by ambulance to a hospital for
treatment.
Four material witnesses stated to immigration officials that they had paid
a smuggling fee, and they identified Sanchez and an individual known as “El
Tio” as the guides. They stated that Sanchez was taking orders from El Tio and
that he was verbally abusive to all the aliens and physically abusive to those
who could not keep up. The aliens reported that El Tio shared his food and
water only with Sanchez and that they refused to share with the other aliens.
At least one alien stated that Sanchez had participated in the decision to leave
E.E. and Alfaro behind. Sanchez originally stated that he too was going to pay
to be transported into the United States, but he later admitted that he did not
have the money and therefore was providing his assistance to El Tio in lieu of
paying the smuggling fee. Furthermore, according to Sanchez’s counsel’s
statements at rearraignment, Sanchez was training to become an alien smuggler
like El Tio.
The PSR assessed a base offense level of 26: a base of 12, a three-level
enhancement for the number of aliens, a three-level enhancement for reckless
endangerment, and an eight-level enhancement because an alien died. The PSR
further imposed a two-level vulnerable-victim enhancement. Following a three-
level reduction for acceptance of responsibility, the total offense level was 25.
This, combined with Sanchez’s criminal history category of I, resulted in an
advisory Guideline range of 57-71 months. The PSR suggested that an upward
departure might be warranted based on the number of aliens that were placed
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at a substantial risk of death or serious bodily injury or based on a finding that
Sanchez’s conduct “was unusually heinous, cruel, brutal, or degrading to the
victim.”
At sentencing, the district court lowered the Guideline range to 46-57
months after sustaining a defense objection to the vulnerable-victim
enhancement. Nevertheless, the district court noted: “These people were
treated cruelly and unbelievable [sic]. And I think they’re vulnerable people,
though they might not be considered so in the guidelines.” After hearing
arguments from the parties, the district court deviated upward to impose a non-
Guideline1 sentence of 80 months in prison, a five-year term of supervised
release, a special assessment, and restitution.
Sanchez filed a timely notice of appeal. On appeal, Sanchez argues that
his sentence is unreasonable.
II.
We review the district court’s application of the Sentencing Guidelines de
novo. United States v. Smith, 440 F.3d 704, 706 (5th Cir. 2006). We will not
overturn factual findings relevant to sentencing unless they are clearly
erroneous. United States v. Creech, 408 F.3d 264, 270 n.2 (5th Cir. 2005).
Post-Booker,2 we review a sentence for “unreasonableness.” Smith, 440
F.3d at 706 (quoting United States v. Booker, 543 U.S. 220, 261 (2005) (alteration
omitted)). Our reasonableness inquiry is guided by the sentencing
considerations set forth in 18 U.S.C. § 3553(a). Id.3 When a district court
1
The district court indicated in its statement of reasons that it was imposing a sentence
“outside the advisory sentencing guideline system.”
2
United States v. Booker, 543 U.S. 220 (2005).
3
Those factors include:
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
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imposes a non-Guideline sentence, “we conduct our reasonableness review
through an abuse-of-discretion lens, paying particular attention to the specific
reasons given for deviating from the Guidelines.” United States v. Armendariz,
451 F.3d 352, 358 (5th Cir. 2006). “The farther a sentence varies from the
applicable Guideline sentence, the more compelling the justification based on
factors in section 3553(a) must be.” Smith, 440 F.3d at 707 (internal quotation
marks and citation omitted).
“A non-Guideline sentence unreasonably fails to reflect the statutory
sentencing factors where it (1) does not account for a factor that should have
received significant weight, (2) gives significant weight to an irrelevant or
improper factor, or (3) represents a clear error of judgment in balancing the
sentencing factors.” Id. at 708. We have held that a factor already accounted for
in the advisory Guideline range is an improper factor to consider for a
non-Guideline sentence. United States v. Walters, 490 F.3d 371, 374 (5th Cir.
2007), revised, No. 05-51634 (5th Cir. Aug. 10, 2007); United States v. Perrin, 478
F.3d 672, 678 (5th Cir. 2007); United States v. Goldsmith, 192 F. App’x 261, 267
(5th Cir. 2006) (unpublished). The purpose of such a rule must be to avoid
double-counting; otherwise, restricting the sentence and the sentencing judge
(2) the need for the sentence imposed-
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner; ...
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; ....
18 U.S.C. § 3553(a) (2006).
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renders the Guidelines mandatory, which violates the constitutional holding of
Booker. See 543 U.S. at 245.
Sanchez argues that the district court relied on improper factors when it
deviated upwards from the Guideline range to impose a non-Guideline sentence.
According to Sanchez, the district court deviated upwards due to the number of
aliens that Sanchez recklessly endangered, the death that occurred, and the
vulnerability of the victims. Sanchez contends that all of these factors are
already accounted for by the Sentencing Guidelines and are therefore improper
factors.
Here, the district court deviated from the advisory Guideline range of 46-
57 months and sentenced Sanchez to 80 months in prison, based on the nature
and circumstances of the offense, the history and characteristics of Sanchez, and
the need to impose a sentence that reflected the seriousness of the offense. See
18 U.S.C. § 3553(a).4 In imposing a non-Guideline sentence, the district court
did not double-count based on factors already considered by the advisory
Guidelines range; instead, the district court deviated upwards because it felt
that the facts in this case were more egregious than the normal alien-smuggling
case. Cf. United States v. Rajwani, 476 F.3d 243, 250 (5th Cir. 2007), modified
on other grounds, 479 F.3d 904 (5th Cir. 2007) (departure permitted because
aspects of victims’ vulnerability were not factored into the Guideline range). The
4
The district court did not err, as Sanchez contends, by failing to consider § 3553(a)(6),
which requires courts to consider “the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar conduct.” As he did
before the district court, Sanchez emphasizes that another district court did not upwardly
depart in a different case with substantially similar facts. See United States v. Garcia-
Guerrero, 313 F.3d 892, 897 (5th Cir. 2002) (for financial gain, defendant led aliens in the
middle of summer with inadequate supplies, and one alien died of probable heat stroke).
Citing one case in which a lower sentence was imposed clearly cannot establish an
unwarranted disparity under 18 U.S.C. § 3553(a)(6).
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district court found that the facts were “heinous”5 and that the defendant’s
actions were “like torturing these people and leaving them to die” while refusing
to share food and water.6 The district court acknowledged that the Guidelines
imposed an enhancement for reckless endangerment, but noted that Sanchez’s
actions had helped to place over twenty people in serious danger. Furthermore,
while the Guidelines imposed an enhancement for the death of E.E., the district
court found the facts surrounding his death extraordinary. The district court
simply did not believe Sanchez’s contention that he had not known that E.E. was
dying. In fact, the district court found that Sanchez had “slapped” E.E. and
called him names despite E.E.’s obvious illness. Additionally, because Sanchez’s
motivation had been to learn the alien smuggling business, the district court
concluded that Sanchez had failed to help the aliens because of concern about his
new job and the money he hoped to make. Finally, the district court did not
double-count the vulnerable victim enhancement, given that it rejected the
enhancement when it calculated the Guideline range.
Based on these characteristics of Sanchez and on the egregious
circumstances of the offense, we conclude that the sentence is not unreasonable,
and accordingly, the district court did not abuse its discretion either in its
decision to deviate upwards or in the degree of its deviation. See Armendariz,
451 F.3d at 358.
5
Sanchez argues that his conduct was not “unusually heinous, cruel, brutal, or
degrading to the victim” to meet the standard for extreme conduct under U.S.S.G. § 5K2.8.
His argument is meritless because the district court did not depart based on § 5K2.8.
6
Sanchez contends that the district court erred when it considered evidence showing
that Sanchez had refused to share food and water with the aliens. Sanchez asserts that the
district court misstated his ability to share food and water and to use the cell phone to seek
help, but he presented no evidence to the district court in support of his allegations. In the
absence of evidence to the contrary, the district court was entitled to rely on the facts stated
in the PSR. See United States v. De Jesus-Batres, 410 F.3d 154, 164 (5th Cir. 2005), cert.
denied, 126 S. Ct. 1020 (2006). Therefore, the district court’s findings were not clearly
erroneous. See id.; Creech, 408 F.3d at 270 n.2.
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III.
For the foregoing reasons, Sanchez’s sentence is
AFFIRMED.
7