     Case: 17-20162      Document: 00514349492         Page: 1    Date Filed: 02/15/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 17-20162                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                         February 15, 2018
UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee

v.

NELSON JAVIER MELGAR-RAMOS, also known as Nelson Melgar Ramos,
also known as Nelson Javier Melgar Ramos, also known as Nelson Melgar,

              Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:16-CR-377-1


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       Nelson Melgar-Ramos pleaded guilty to illegal reentry. The Presentence
Report, using the 2014 version of the Sentencing Guidelines which covers the
period when Melgar-Ramos committed the immigration offense, calculated a
total offense level of 10 and criminal history category of IV. That resulted in
an advisory range of 15-21 months’ imprisonment. The PSR noted that an
upward departure might be warranted due to underrepresented criminal



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-20162
history because this was Melgar-Ramos’s fourth felony and he had a prior
encounter with immigration authorities that did not receive any criminal
history points.
      At the hearing, the district court imposed an upward variance of 36
months. As justification for that decision, the court identified the defendant’s
“grossly understated” criminal history. It then chronicled all of those prior
offenses, which include child endangerment, twice driving with a revoked
license, twice possessing cocaine, driving while intoxicated, and injury to a
child. The court noted details of the recent injury to a child offense, which
involved Melgar-Ramos on two separate occasions putting his hand inside the
shirt of a sleeping 11-year-old female who was spending the night with his
children. The district court also detailed how little time Melgar-Ramos had
spent in custody for these crimes. It ended the recitation of criminal history
by noting “other criminal conduct, of course, was that illegal reentry, of which
no [criminal history] points were assessed.” The court also observed that a
“criminal history category of not less than V is more representative of this
defendant.”
      Melgar-Ramos alleges numerous errors that he contends render the
sentence substantively unreasonable. His first focuses on that last comment
about criminal history category V, pointing out that elevating his score to that
level would have only resulted in a range of 21 to 27 months, below the
sentence imposed. This ignores, however, that the court noted a category “of
not less than V.” More fundamentally, the district court made clear that it was
imposing a variance rather than a departure under the Guidelines.            See
generally United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008)
(explaining the difference between a variance and Guidelines departure). A
variance need not be tied to a particular Guidelines range; what matters is
whether the district court reasonably considered the statutory sentencing
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                                  No. 17-20162
factors of 18 U.S.C. § 3553 in arriving at a sentence that is sufficient, but not
more than necessary, to further those interests. United States v. Mejia-Huerta,
480 F.3d 713, 723 (5th Cir. 2007). The district court did that here, noting in
its Statement of Reasons that the sentence was necessary to account for the
history and characteristics of the defendant, the need to promote respect for
the law, the need to provide just punishment, and the need to protect the
public. 18 U.S.C. § 3553. And the degree of the variance at 70% above the top
of the advisory Guidelines range, though significant, is less than many others
we have upheld.      See United States v. Beltran-Cervantes, No. 16-10149, -- F.
App’x --, 2017 WL 4641260, at *2 (5th Cir. Oct. 16, 2017) (citing a number of
cases rejecting challenges to variances, including some that imposed sentences
that were 300% or 400% higher than the top of the Guidelines range).
      Melgar-Ramos next argues that the district court erred in noting that he
now had four felony convictions when justifying the upward variance. The
Guidelines, he notes, look at the length of a sentence rather than its felony
classification in assessing criminal history points. This again misses that the
choices reflected in Guidelines scoring do not limit what a court may consider
in imposing a variance. See, e.g., United States v. Newsom, 508 F.3d 731, 735
(5th Cir. 2007) (allowing court to consider “dangerous uncharged conduct”
when sentencing above the advisory range). The lodestar for the exercise of a
court’s Booker discretion is the statutory sentencing factors, and the district
court did not abuse its discretion in finding the number of felonies, and the
lenient sentences imposed for them, relevant to that section 3553 analysis. See
United States v. Brumfield, 558 F. App’x 489, 490 (5th Cir. 2014).
      The next alleged error is a comment made early in the sentencing
hearing, during defense counsel’s argument seeking a low end sentence of 15,
when the court noted that under the 2016 Guidelines the defendant would be
facing a more substantial range with a low end of 37 months. This, Melgar-
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                                 No. 17-20162
Ramos contends, amounts to a violation of the Ex Post Facto Clause or, at a
minimum, demonstrates that the court used an impermissible factor in
deciding the sentence.     But the district court clearly treated the 2014
Guidelines as governing and considered its 15 to 21 months range. The district
court did not mention the 2016 Guidelines when announcing the reasons for
the sentence.   The record thus does not demonstrate that the court gave
improper weight to a Guidelines range not in effect.
      Lastly, Melgar-Ramos argues that the district court made a mistake in
characterizing his earlier uncharged immigration offense as an “illegal
reentry.” Instead, as the government concedes, Melgar-Ramos was only liable
for illegal entry (which is a misdemeanor) because he had not previously been
deported. The PSR had labeled this “other criminal conduct” as both an illegal
entry and illegal reentry, but defense counsel never objected in the district
court to the later characterization. As recited above, at the end of its lengthy
recitation of the defendant’s criminal history that supported the variance, the
district court noted that no criminal history points had been assigned for the
uncharged “illegal reentry” offense.       It was permissible to consider this
uncharged offense which was supported by unrebutted ICE records.              See
United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008). As for
erroneously referring to it as a “reentry,” our review of the record convinces us
that the distinction between illegal entry and reentry did not impact the
district court’s decision. The district court emphasized the defendant’s lengthy
criminal history and the leniency he had received which had not deterred
future misconduct. Melgar-Ramos’s unlawful presence in the United States
was one of many examples of that trend whether it constituted a misdemeanor
or felony offense. We are not convinced that referring to it as a “reentry”
amounted to the impermissible weighing of the sentencing factors or
consideration of an impermissible factor.
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                          No. 17-20162
 AFFIRMED.




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