Case: 16-41090 Document: 00513967925 Page: 1 Date Filed: 04/25/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-41090 FILED
Summary Calendar April 25, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RAYMUNDO RAMIREZ-CASTRO,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:16-CR-401-1
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
Raymundo Ramirez-Castro pleaded guilty to illegally reentering the
United States after deportation, and the Guidelines produced an advisory
sentencing range of 24 to 30 months. Considering Ramirez-Castro’s numerous
prior convictions for driving while intoxicated (DWI) and various immigration
offenses in light of 18 U.S.C. § 3553(a), the district court imposed an above-
guidelines sentence of 40 months of imprisonment. On appeal, Ramirez-Castro
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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contends that the district court procedurally erred in relying on his prior DWI
convictions to support the variance in the name of protecting the public. See
18 U.S.C. § 3553(a)(2)(C). He further asserts that his sentence is substantively
unreasonable.
Because Ramirez-Castro did not object to his sentence as procedurally
unreasonable, we review that issue for plain error. See Puckett v. United
States, 556 U.S. 129, 135 (2009). He argues that, in varying upward, the
district court relied on a fact—namely, that he was a danger to the public based
on his history of DWI—that was clearly erroneous because his last DWI offense
was in 2005 and he had been sober for five years prior to sentencing. See Gall
v. United States, 552 U.S. 38, 51 (2007). However, “[q]uestions of fact capable
of resolution by the district court upon proper objection at sentencing can never
constitute plain error.” United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991).
In any event, in light of his extensive history of DWI, Ramirez-Castro has not
shown that the district court’s finding that he continued to pose a danger to
the public was clearly or obviously erroneous. See Puckett, 556 U.S. at 135.
Further, Ramirez-Castro’s sentence was not based solely on his history
of DWI but also on his prior convictions for immigration-related offenses.
Notably, the district court found that an above-guidelines sentence was
warranted because Ramirez-Castro’s most recent 30-month sentence for illegal
reentry did not deter his commission of the instant offense. Therefore,
Ramirez-Castro fails to show that any error affected his substantial rights. See
United States v. Escalante-Reyes, 689 F.3d 415, 424 (5th Cir. 2012).
We review the substantive reasonableness of Ramirez-Castro’s sentence
for abuse of discretion. See United States v. Key, 599 F.3d 469, 475 (5th Cir.
2010); Gall, 552 U.S. at 51. Ramirez-Castro asserts that, given the remoteness
of his last DWI and his five years of abstinence, the district court placed undue
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No. 16-41090
weight on the need for his sentence to provide for the protection of the public.
The district court listened to that argument and credited Ramirez-Castro for
the changes he has made in his life. Nonetheless, given its awareness of
Ramirez-Castro’s history of DWI, the court could reasonably have concluded
that he continued to pose a danger to the community despite his ongoing
sobriety. Further, as noted, the court also considered the need to deter
criminal conduct and promote respect for the law in light of Ramirez-Castro’s
immigration offenses. Given the record, Ramirez-Castro fails to show that the
sentence was unreasonable. See United States v. Smith, 440 F.3d 704, 708 (5th
Cir. 2006).
AFFIRMED.
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