United States v. Jose Ramirez-Adame

Case: 12-41334 Document: 00512387927 Page: 1 Date Filed: 09/26/2013

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
September 26, 2013
No. 12-41334
Summary Calendar Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE DE JESUS ARMANDO RAMIREZ-ADAME,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:12-CR-625-1

Before KING, DeMOSS and GRAVES, Circuit Judges.
PER CURIAM:*
Jose de Jesus Armando Ramirez-Adame (Ramirez) appeals the sentence
imposed following his guilty plea conviction for being unlawfully present in the
United States following removal. Ramirez contends that the district court’s
imposition of a two-year term of supervised release was procedurally and
substantively unreasonable in light of a sentencing guidelines provision and
related commentary which state that a “court ordinarily should not impose a
term of supervised release . . . [on] a deportable alien[,]” unless “supervised

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 12-41334

release . . . would provide an added measure of deterrence and protection based
on the facts and circumstances of a particular case.” U.S. SENTENCING
GUIDELINES MANUAL § 5D1.1(c) & cmt. n.5. He further maintains that the
imposition of a term of supervised release was substantively unreasonable
because this was his first illegal reentry conviction, because his criminal history
was minor, and because he is unlikely to return to the United States because
most of his family resides in Mexico.
To preserve the argument, Ramirez asserts that the district court’s
imposition of a supervised release term constituted a departure from the
guidelines sentence range and that advance notice of the departure was
required. As Ramirez correctly concedes, his argument is foreclosed by United
States v. Dominguez-Alvarado, 695 F.3d 324, 329 (5th Cir. 2012).
As Ramirez challenges the imposition of the term of supervised release for
the first time on appeal, we review his claims for plain error only. See United
States v. Dominguez-Alvarado, 695 F.3d 324, 327 (5th Cir. 2012) (procedural
reasonableness); see United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007)
(substantive reasonableness). Ramirez maintains that his substantive
unreasonableness claims should not be subject to plain error review to preserve
the argument for further review. As Ramirez concedes, this argument is
foreclosed by Peltier.
Under the plain error standard, Ramirez must show a clear or obvious
forfeited error that affected his substantial rights. See Puckett v. United States,
556 U.S. 129, 135-36 (2009). If Ramirez makes such a showing, we have
discretion to correct the error but should do so “only if the error seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id.
at 135 (internal quotation marks and citation omitted).
Although the district court did not explain why it was imposing a term of
supervised release, it expressly adopted, without objection, the findings and
applications in the presentence report, which specifically referenced the

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No. 12-41334

guidelines provisions applicable to supervised release. The presentence report
stated in part: “Pursuant to U.S.S.G. § 5D1.1, the Court ordinarily should not
impose a term of supervised release in a case in which supervised release is not
required by statute and the defendant is a deportable alien who likely will be
deported after imprisonment.” There is no indication that if the district court
had been required to give reasons, it would have concluded that a term of
supervised release was not warranted. See United States v. Cancino-Trinidad,
710 F.3d 601, 607 (5th Cir. 2013). Furthermore, Ramirez cannot show that any
error, if left uncorrected, would seriously affect the fairness, integrity, or public
reputation of judicial proceedings. See Puckett, 556 U.S. at 135; see also
Cancino-Trinidad, 710 F.3d at 607 n.11. Accordingly, he has not shown, under
the applicable plain error standard, that the district court committed reversible
procedural error by failing to provide an adequate explanation of its decision to
order a term of supervised release.
Ramirez’s assertion that the district court committed substantive error by
failing to account for § 5D1.1(c) is insufficient to rebut the presumption of
reasonableness applicable to Ramirez’s within-guidelines term of supervised
release. See Cancino-Trinidad, 710 F.3d at 607-08. Likewise, Ramirez’s factual
assertions regarding his criminal history and his personal circumstances are
insufficient to rebut the presumption of reasonableness, and he has not shown
substantive plain error. See United States v. Campos-Maldonado, 531 F.3d 337,
339 (5th Cir. 2008).
AFFIRMED.

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