IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 1, 2009
No. 08-50705
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE ANGEL RAMIREZ-MIRANDA, also known as Rodolfo M Garcia
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-733-ALL
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Jose Angel Ramirez-Miranda (Ramirez) appeals the
27-month, within-guidelines sentence that he received after he pleaded guilty to
being in this country unlawfully after removal, in violation of 8 U.S.C. § 1326.
Ramirez contends that his sentence was greater than necessary to accomplish
the goals of sentencing listed in 18 U.S.C. § 3553(a) and, therefore, was
substantively unreasonable. He concedes that this court ordinarily applies a
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-50705
presumption of reasonableness to within-guidelines sentences but argues that
the presumption should not apply in this case because U.S.S.G. § 2L1.2, which
was used to enhance his sentence, is flawed is not empirically supported. He
cites Kimbrough v. United States, 128 S. Ct. 558, 574-75 (2007), to support his
argument.
Because Ramirez did not challenge § 2L1.2 in the district court, his
argument is reviewed under the plain error standard of review. See United
States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.), cert. denied, 129 S.
Ct. 328 (2008). Ramirez fails to make the requisite showing of clear or obvious
error, see United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert. denied,
129 S. Ct. 962 (2009), given that this court has already rejected the precise
argument that he makes. See Campos-Maldonado, 531 F.3d at 339.
The substantive reasonableness of Ramirez’s sentence is reviewed for an
abuse of discretion. See Gall v. United States, 128 S. Ct. 586, 597 (2007). The
district court sentenced Ramirez within the guidelines range of imprisonment
despite his argument that a guidelines sentence would be greater than necessary
to satisfy § 3553(a) in light of his age, scant criminal history, and his family ties
in this country. In rejecting Ramirez’s argument, the district court considered
the history and character of Ramirez, the need to promote respect for the law,
the need to protect the public from him, and the need to deter him, all factors set
forth in § 3553(a). Thus, Ramirez has not shown that the district court abused
its discretion when it sentenced him. See Gall, 128 S. Ct. at 597.
AFFIRMED.
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